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[2010] NSWDC 186
District Court of NSW
2010-09-01
Ms P, Mr P
Original judgment source is linked above.
CITATION: Withyman v State of NSW & Anor [2010] NSWDC 186
HEARING DATE(S): 15/2/10-16/2/10, 22/2/10-1/4/10, 6/4/10-9/4/10, 29/6/10-9/7/10, 19/7/10-23/7/10, 16/8/10-19/8/10.
CATCHWORDS: Sexual relationship between student and teacher - Liability of teacher and school - Damages for committing criminal acts.
LEGISLATION CITED: Evidence Act 1995 Civil Liability Act 2002
Commonwealth of Australia v Introvigne (1981-1982) 150 CLR 258 Gala v Preston (1991) 172 CLR 243 March v Stramare (1990) 171 CLR 506 Mobbs v Kain [2009] NSWCA 301 New South Wales v Ibbett (2006) 229 CLR 638 CASES CITED: New South Wales v Lepore [2003] 212 CLR 511 Richards v State of Victoria [1969] VR 136 Sangha v Baxter [2007] NSWCA 264 Singh v Minister for Immigration (2001) 109 FCR 152 Serobian v Commonwealth Bank of Australia [2010] NSWCA 181 SRA of NSW v Wiegold (1991) 25 NSWLR 500 Tabet v Gett [2010] HCA 12
David Maurice Withyman by his tutor Glenda Ruth Withyman (Plaintiff) PARTIES: State of New South Wales (First Defendant) Anna Blackburn (Second Defendant)
Mr H J Marshall SC, Mr R J Sergi, Ms P Kerr (Plaintiff) COUNSEL: Mr A C Bridge SC (initially), then Mr P Blacket SC and Mr A B Parker (First Defendant) In Person (Second Defendant)
Kenny Spring Solicitors (Plaintiff) SOLICITORS: Hicksons (First Defendant) In Person (Second Defendant)
Topic Paragraph Introduction 1 The plaintiff and his witnesses 18 The first defendant's case 223 The second defendant and her lay witnesses 229 The medical evidence 302 Was there a sexual relationship between the plaintiff and Ms Blackburn? 360 The effect of a finding of a sexual relationship including causation 380 Was there a breach of duty by the first defendant (other than vicariously)? 393 Was the first defendant vicariously liable for the actions of Ms Blackburn? 415 Contributory negligence 419 Section 54 of CLA 420 Some general points on damages 424 The plaintiff's damages 425 The first defendant's Cross Claim against Ms Blackburn 438 The second defendant's Cross Claim against the plaintiff and damages 442 Final Orders 461
The legal representatives of the plaintiff and first defendant not only met this duty in respect of final submissions but also acted throughout the trial in a manner that allowed the second defendant to fully and fairly present her case. On the last day of hearing Ms Blackburn, presumably because of a lack of babysitting facilities, brought her infant son to court. I thank Mr Marshall for continuing his submissions despite the background noise. 6. The nature of a relationship between the plaintiff and the second defendant is central to the case. The plaintiff alleges a passionate sexual liaison lasting about six months. Its termination by the second defendant precipitated a downward spiral into depression and crime. " As a consequence of the termination of the Sexual Relationship the Plaintiff suffered a mental illness, and as a result committed a number of criminal offences ." (Paragraph 21 of the Amended Statement of Claim.). 7. The second defendant denies any sexual activity. She says there was a friendship with the plaintiff that grew from her desire to help him with his learning problems. His descriptions of sex and romance are fanciful.
The plaintiff says the first defendant is liable because of the school's own acts of negligence and also because of the acts of the second defendant. The latter arises from the non-delegable duty of care it owed to the plaintiff and from its vicarious liability for the actions of one of its teachers.
For most of the hearing the first defendant took a neutral stance about whether or not the sexual relationship had existed. It was only in final addresses that it submitted that there had been such a relationship. The plaintiff's problems, however, were not a product of any negligence on its part, nor was it vicariously liable for any breach of duty by the second defendant.
The second defendant is alleged to be liable because of her personal breach of the duty she owed the plaintiff as his teacher.
The first defendant has a cross claim against the second defendant, essentially seeking contribution or indemnity in respect of any damages for which it is found liable to the plaintiff.
The second defendant has a cross claim against the plaintiff. She wants damages to compensate her for the criminal acts that the plaintiff has inflicted upon her. These include damages for pain and suffering and economic loss.
Almost the whole of the plaintiff's criminal history concerns actions against the second defendant. These are the same crimes upon which the second defendant has based her cross claim. The plaintiff does not deny this criminal activity. Rather he says the defendants' actions led him to commit the offences. Thus they are to blame for him breaking the law. There is a substantial causation issue.
The plaintiff, who is now 25 years of age, has sued by a tutor. He says he does not have the mental capacity to pursue his case in his own right. The defendants concede he has a learning disability and a disturbed personality.
The causation point I referred to above is complex. Despite this I think there are some basic propositions that defined the factual issues that I needed to resolve. These are: A. If a sexual relationship commenced between the plaintiff and the second defendant while the plaintiff was a student then there was a breach of the duty owed to him by the second defendant as his teacher.
B. If this relationship did so commence then the first defendant was in breach of its duty to the plaintiff if it permitted, condoned or knew, or should have known of the risk of, the relationship.
C. If one or both of the defendants are liable to the plaintiff, the plaintiff may be entitled to damages from whoever is liable to him.
D. The damages may or may not extend, as a question of causation, to the plaintiff's committing criminal acts and their consequences.
E. If the damages do not extend to the criminal acts, then the plaintiff might be liable to the second defendant for damages arising from his assaulting the second defendant and from breaches of Apprehended Violence Orders ("AVOs").
F. If there was no sexual relationship, the plaintiff fails against both defendants. The second defendant's cross claim against the plaintiff would then succeed. (The plaintiff did not abandon a 'secondary' case against the defendants involving no sexual relationship but frankly accepted that in that circumstance the plaintiff did not suffer any damages.) 16. The case was heard over a number of days. The evidence was extensive. I do not propose to repeat or summarise all of the oral evidence. I hope instead to refer to those parts of the evidence that play a part, often indirectly or as background, in my decision. In addition, as I proceed on this course, I will make comments and findings arising from the evidence. For convenience I will generally refer to the second defendant as Ms Blackburn. To avoid confusion with his father, I will not adopt the same practice for the plaintiff. Thus all references to Mr Withyman are to the plaintiff's father.
These are some basic dates: - Ms Blackburn was 29 for most of 2003.
The first witness called on behalf of the plaintiff was his mother, Mrs Glenda Withyman. She was born in 1954 in Port Macquarie. In 1978 she travelled to the United Kingdom where she married Mr Maurice Withyman. He had two children from a previous marriage. He was born in September 1950. Mrs Withyman's first child, Mauricia, was born in England in 1979. The family then came back to Australia. Mark was born in 1980. Adam was born in 1982. Mrs Withyman is a nurse and has worked in this occupation for many years. Her husband is employed in the prison service and is currently an Assistant Governor.
Mrs Withyman said that her daughter Mauricia was a design and technology teacher at Bathurst High School. She was married with three daughters. Notably, as a student teacher, Mauricia did a practical period at Carenne in 2003. She was not called as a witness. There was evidence to suggest she did not get on with the plaintiff (T 883.24). Mark is a policeman in Noosa. He is also married and has two children. Adam is a qualified plumber but now works as a miner in Newcastle. He has a de facto partner but no children.
Mrs Withyman said the plaintiff had a normal birth but an incident occurred when he was six weeks old. She found him with his head caught in the rails of the cot. He was face down and unconscious. He was blue. She turned him over and because he was not breathing she blew oxygen into his mouth. She called for help from her husband, who was in the next room, and they immediately set off for the local hospital. By the time they reached the hospital the plaintiff seemed to have recovered and they decided not to seek assistance. Their decision was influenced by the fact that they had an appointment with a paediatrician, Dr Scarf, the next day as part of the routine post natal process. They attended the appointment and told Dr Scarf of the incident. He described it as a "near death cot accident" but reassured them that all was well.
This incident features in a lot of the medical reports and histories to doctors but its significance is difficult to gauge. It is not suggested in any medical report that the incident is the cause of the plaintiff's learning difficulties that manifested as he grew older.
Mrs Withyman noticed that the plaintiff seemed to have difficulty with language. He was not learning words and by age 4 he had poor speech articulation. He was referred to a speech pathologist and he started kindergarten at Kyeemah at age 5. A decision was made not to keep him back because he was a big child and it was thought he would be at a disadvantage if he was much bigger than his peers.
Mrs Withyman described him as a "good kid", mischievous but not wilful. She said he took direction but did not concentrate. He repeated kindergarten and he was well behaved, at least when she attended to, for example, help the class with reading.
Mrs Withyman said that by the end of Year 1 her son was struggling with numbers and he was unhappy at school. He was referred to a paediatrician and a psychologist.
According to the plaintiff's mother he was not subjected to physical punishment by herself or by her husband. She did say that her husband was a stern disciplinarian but he did not inflict corporal punishment. Some medical reports refer to histories of physical abuse by Mr Withyman. Despite his involvement in many aspects of the case, he was not called to give evidence. I draw no inference beyond that his evidence would not have assisted the plaintiff's case.
By the end of Year 2 the plaintiff was slipping further behind so Mrs Withyman looked into sending him to Carenne School. She knew the institution from a student placement that she had undertaken. She spoke to Mr Roxborough, the headmaster, and arranged for the plaintiff to attend at Carenne for the first six months of Year 2. In the second half of that year he returned to West Bathurst Primary School but with an Outreach Teacher from Carenne for 80 minutes per day. She said that her son loved Carenne and was much more settled when he went back to West Bathurst. She said this position continued through primary school and during this time she had no problems dealing with him.
By the time he entered Year 7, at Bathurst High School, the plaintiff was keen to go to school although in his first year he was suspended twice. Mrs Withyman at first said she did not remember why he had been suspended but then remembered that one of the occasions was for acting as a lookout for other boys who were lighting fires. She said that after the second suspension she contacted Ms Carol McDiarmid from the Department of Education to see if her son could return to Carenne. He was accepted with the support of Mr Roxborough and in Year 8 he went back to Carenne. She said that he enjoyed this school, that he was manageable at home and he was not teased or bullied by his siblings. Her husband was firmer as the children grew older but the plaintiff was not subjected to physical punishment.
From Year 9 the plaintiff started work experience organised by the school. Mrs Withyman said there were no bad reports from his work experience. She described him doing a welding course at TAFE, which he enjoyed. She said that by Year 12 the plaintiff's reading was not very good. She described it as at Year 3 or 4 standard. He had obtained his Learner's Permit in Year 11 after much hard work but he was still to get a full driver's licence because he could not pass the test. He had tried four times. He remained on a 'green' provisional licence.
Mrs Withyman described her son's interest in sport. He liked watching it on TV and was a keen rugby league player. He had been in the same team, St Patricks, from age 7. She said that once he had his licence he would drive to training and the games. She did not think he drank very much and, in fact, he was known as "designated Dave". He had a firm group of friends from his football team.
Mrs Withyman described the plaintiff as a happy teenager and this continued until October 2003. The picture painted by Mrs Withyman was one that accepted some behavioural problems, but not many. She described a young man with learning difficulties but also one who enjoyed life and was generally coping with his situation. A somewhat different picture emerged in cross examination and gave me a real concern for the reliability of Mrs Withyman's evidence. The plaintiff obviously had significant behavioural problems that Mrs Withyman said she either was unaware of, or could not recall.
It is clear from, for example, documents filled out by her and her husband, as well as letters from schools, that the picture she painted had a significant gloss over some very rough edges. I was particularly concerned about an answer she gave concerning a disability application (Exhibit 1D3) that was made on the plaintiff's behalf. She was confronted, when shown this application, with material that contradicted her earlier evidence and she responded by saying that it was necessary, in such applications, to "accentuate" her son's difficulties. My impression was that the form was probably accurate but she needed a reason to combat the suggestion that her descriptions of the plaintiff were somewhat blander than reality.
During 2003, but prior to October, Mrs Withyman noticed that the plaintiff stayed out later, sometimes overnight, with the excuse that he was with friends. She knew the friends' parents and she was not worried. Mrs Withyman was unaware of the plaintiff's anti-social behaviour, such as his randomly bashing university students.
Mrs Withyman said she was unaware of the Behaviour Contract (Exhibit N) prepared in 2003 until after the commencement of the court case. It later emerged she was also unaware of a Behaviour Contract signed in 2001.
Mrs Withyman first became aware of Ms Blackburn in 2003 when she brought him home after he had been in a motor vehicle accident. She did not speak to her son about Ms Blackburn although she did ask him who the lady was. In August 2003 Mauricia did some teacher training at Carenne and she spoke to her mother about the plaintiff and Ms Blackburn. As a result Mrs Withyman said she gave her son some advice. No one else had spoken to her about Ms Blackburn. Mauricia did not give evidence and I do not know the content of her report to her mother.
In September 2003 the plaintiff asked his mother if he could bring Ms Blackburn to Mr Withyman's forthcoming birthday celebration. She said 'No', that it would not be appropriate. Ms Blackburn did not attend.
On 12 October 2003 Mrs Withyman received a call from Ms Blackburn. She asked her to come to Wattle Flat, where Ms Blackburn lived, to pick up David. She was told he had lost his temper and needed to go home. Mrs Withyman and her husband travelled to Wattle Flat, a distance of about 15 kilometres, where she spoke to Ms Blackburn. The teacher said she had been trying to help David because he had a drug and alcohol problem. Mrs Withyman replied that that was not true and that Ms Blackburn should have gone through the right channels, in particular through Mr Roxborough. The police were also in attendance.
Mrs Withyman found her son distressed. He wanted to speak to Ms Blackburn but he was being restrained. He broke away from the police and pursued Ms Blackburn. The police got hold of him again and he continued to struggle. He was upset and crying out "I just want to speak to Anna". The police took him to Bathurst Base Hospital for an assessment. Neither Mr nor Mrs Withyman accompanied him or met him at the hospital, a matter which I found strange but do not draw any inference from it. After about three hours the police brought the plaintiff home. It was then midnight. He was upset, anxious and agitated. He was banging his hands on a bench and repeating his desire to speak to Ms Blackburn. He was still upset the next day and an appointment was made for him to see Dr Corbett-Jones, a general practitioner.
12 October was a Sunday. On the next Tuesday afternoon the plaintiff took the keys to a family car and set off for Wattle Flat. Mrs Withyman pursued him, but she lost him in the village.
The plaintiff was examined at Warilda House by a mental health team. Over the next three days the he paced the room and did not sleep. He was crying a lot. He did not eat although he was hungry. He stayed in this state for some months. Mrs Withyman said she had never seen this behaviour in him before.
By November 2003 the plaintiff was having regular treatment at Warilda House and also at Cadia House, which also houses a mental health unit.
From January to March 2004 the plaintiff worked as an apprentice carpenter at Woodright and also attended a TAFE. He had difficulty with measuring and drawing and suffered from his lack of mathematics skills.
He was admitted to Bloomfield Psychiatric Hospital in March 2004 and had counselling with a psychologist, Mr Graham Palmer. From March to October 2004 Mrs Withyman found him to be upset at short notice. In October 2004 he started eight weeks of work at Bindaree Beef in Inverell. He had to live in Inverell and fend for himself. His mother thought he did this well. He lost the job, however, after a dispute with a co-worker. In March 2005 the plaintiff worked for Marcel Gittany on a part-time labouring basis. By this time his mood was still up and down and he was sad and not sleeping. He played some Rugby League in 2004 but not in 2005. In August 2005 the plaintiff worked as an apprentice chef in an Indian restaurant. The job lasted about eight weeks. In May 2006 he again worked as an apprentice chef, this time at the Kelso Hotel where he remained for 14 months. The job was ended by a disagreement.
In September 2007 the plaintiff was admitted to Bloomfield Psychiatric Hospital after an incident with the police.
Mrs Withyman said that her son had been in prison on three occasions and she had visited him. She had found him angry, verbally abusive and thinner. She felt he blamed her for his predicament because she had, on one occasion, called the police. Mrs Withyman was shown Exhibit P, a letter written to her by her son. She described the standard of writing in the letter as better than expected of the plaintiff.
The plaintiff was finally released from prison in June 2009. After a short stay with his brother in Newcastle he came home. Mrs Withyman thought he was happy to be home. His behaviour was good and has continued to improve.
The plaintiff fell off a horse in November 2009 but seems to have recovered. He drives and his mother has no concerns about him going out socially. He is still taking antidepressant medication but she said that he seemed to be returning to the happy child he was before October 2003.
Mrs Withyman was asked about histories that the plaintiff gave to various medical practitioners, in particular Dr Roberts and Dr Allnutt. These histories were not the truth, said Mrs Withyman, although it was not suggested that the plaintiff did not provide them. There was also no suggestion that the medical practitioners incorrectly recorded the histories. The clear inference is that the plaintiff grossly exaggerated what he said to the doctors. Examples can be found in paragraphs 5.1 and 5.5 of Dr Wendy Roberts' report. I note here that in his opening, learned senior counsel for the plaintiff said that his client exaggerated and that caution needed to be taken in assessing his reliability. This raised the spectrum of the plaintiff, in a sense, not relying on his own histories and evidence.
The issue came starkly into focus after the plaintiff's evidence when this exchange occurred with the plaintiff's senior counsel: "HIS HONOUR: Mr Marshall, I'm not sure if he's not feeling well but I just wanted to raise something with you in his absence because really I don't want to say certain things in front of him which might be hurtful but is what you've just said and again let's put aside honesty or credit, just reliability; that unless corroborated by something or someone else none of his evidence is reliable; is that the ultimate effect? I mean we've had five days of this man and not all in chief; a lot of it - most, I think I haven't broken it up but whatever, five days of him in the witness box. Is it going to come down to at the end of the day unless otherwise corroborated no value? You don't have to answer that now, it's just it arose from our discussion and it worries me. MARSHALL: Your Honour, I'm tempted to say yes but there are some exceptions to that where the evidence is of such inherent probability given surrounding circumstances that your Honour could draw an inference or accept the reliability of that evidence as following. There may be other aspects which I would seek to throw into that exception camp as well but substantially I would have to answer your Honour's question, yes." (T 941.17) 49. It is also worth recalling here these words of senior counsel in opening the case: "In some histories in an attempt to make himself something of a big man, he has exaggerated. Examples of that have occurred whilst he was examined in prison. No doubt there will be a need for your Honour to critically evaluate David's evidence about the relationship but we will say your Honour will see it in context; the context of when it was created, to whom and for what purpose." (T 15.21) 50. Under cross examination Mrs Withyman said this:- "Q. Was that the truth though, that he was prone to exaggerating and lying, always? A. Not always.
Q. But he did do it, and I suggest to you from time-to-time, regularly, to big-note himself didn't he? A. On occasions when he needed to big-note himself." (T 209.38) 51. A good deal of the attack on Mrs Withyman's evidence, by the first defendant, was to spoil the picture that she had drawn of her son while he was in Carenne. On her evidence he had problems up to Bathurst High School but once he changed to Carenne he settled down and he was reasonably well behaved until 12 October 2003 when the alleged affair with Ms Blackburn came to an end. The means of attack adopted by the first defendant was to question Mrs Withyman about a number of documents that had come into being, either under her own hand or through interviews with her, her husband or her son. Although Mrs Withyman did not waiver in her general assertion about her son's behaviour I think cross examination was successful in at least dulling the bright description of the intervening years.
David requires constant supervision during the day to prevent him from endangering himself and others due to his mischievousness. David will sneak matches and light fires whenever he can, this resulted in our previous home almost being engulfed in fire on one occasion. If David can find any tools whatsoever, he will dismantle anything he can find, this results in the dismantled item being ruined or irreparable when David has finished.
David constantly fights with his elder brothers whilst at home, this results in things being thrown and broken, also walls and doors being kicked, there is not one door in the house without a hole kicked into it somewhere, they all have to be replaced at sometime.
David has to be occupied at all times to prevent his mischievousness and stem his temper with his siblings." 53. Mrs Withyman readily described some of the things said by the plaintiff as lies. They particularly concerned his use of drugs and alcohol, his exploits with women and association with criminals. Mrs Withyman was adamant, at least to the extent of her knowledge, that her son had not abused alcohol or taken drugs before October 2003. She squarely inferred that a major downhill slide in his behaviour dated from October 2003. This picture is contradicted by the plaintiff's histories, but the approach I was asked to take was to treat the plaintiff's assertions as fanciful. On the whole of the evidence however it is difficult to avoid a conclusion that the plaintiff was, to some extent, involved with drugs and alcohol before October 2003.
Q. Have they ever? A. No." (T 182.21) The above evidence is to be contrasted with the following:- "HIS HONOUR: Well, just so you know where this is coming from - I'm not sure if it's where you're getting it from Mr Blacket - but there's a report written by a Ms Bye way back in 1993. It's written to Dr Blackwood, and according to the report, you were there at an examination of David, and told Ms Bye some things. What she says is that this is what you told her, that you had reading and spelling difficulties as a child, that's yourself. Your husband was a later maturer, and then she goes on, "two older boys, aged 12 and 10 have learning difficulties, behavioural problems, and concentration difficulties, but not to the extent of David". That's what this lady has recorded. What's your recollection of firstly, this interview? Do you have any specific memory of talking to this lady?
WITNESS: I can remember going and seeing Anne Bye. I can't remember exactly what was said in that interview.
HIS HONOUR: Forgetting about whether you remember what was said, what do you say about whether that's accurate? Do you want me to read it again?
WITNESS: They did have reading problems, the boys. They were just in special reading classes, and - so yes, I guess that is correct then.
HIS HONOUR: Well that's not all she says, "behavioural problems and concentration difficulties but not to the extent of David". Did they have any behaviour problems?
WITNESS: Yes." (T 212.43) 56. Under cross examination by the second defendant Mrs Withyman agreed that her property was on the road which went to Wattle Flat so that Ms Blackburn, travelling to Bathurst, would pass the plaintiff's home.
On the second day of her evidence Mrs Withyman said that she had reflected overnight about what had occurred on 12 October 2003 when she was called to Ms Blackburn's house. She remembered that she had not returned home but had rather stayed with Ms Blackburn and spoken to her over a cup of tea. Ms Blackburn put to her that their conversation included a discussion about the plaintiff having an argument with her, over the telephone, when he was staying with his brother in Darwin. Mrs Withyman could not remember this conversation nor was she aware of the plaintiff having been admitted to the emergency department of a hospital in Darwin. She was, however, aware of an argument the plaintiff had, but she did not know with whom.
Mrs Withyman accepted that she had on occasion been frightened of her son but she said that was not the case at the present. The contents of a statement made by Mr Withyman were put to Mrs Withyman and she agreed with the description of some incidents. The statement was tendered by Ms Blackburn and became Exhibit 2D2. No objection was taken by the plaintiff who, no doubt, took comfort from parts of the statement that refer to the intimate relationship between the plaintiff and Ms Blackburn (eg paragraphs 5, 6 and 7). The first defendant, however, objected to the conclusions, in particular about the affair, included in the statement because they were obviously based on information told to Mr Withyman about the affair. This highlighted one of the problems arising from Ms Blackburn being self-represented. She obviously had no appreciation of the use that might be made of her tendering the statement. When potential problems were pointed out to her she said she appreciated that there was prejudicial material within the statement but that she knew she would have to deal with it in the course of the hearing. Because of this appreciation I allowed the statement to be admitted in full but noted the first defendant's submission about the admissibility of the conclusions.
Mrs Withyman agreed with Ms Blackburn that she had not seen her son engage in any acts of intimacy with Ms Blackburn. She described intimacy, for purposes of the question, as holding hands, kissing and cuddling. Mrs Withyman rejected the suggestion that she was "not surprised" when she found out there was a problem. It was put to her that she would have known that David already had abnormal feelings for Ms Blackburn after the events in September (when the second defendant brought the plaintiff home after the car accident). Mrs Withyman was also not aware of an altercation on the night of 11 October 2003.
Mrs Withyman accepted that she had suggested to Ms Blackburn that her trip to work should be via an alternate route so as not to pass the plaintiff's home. This suggestion was made by telephone on the Tuesday following 12 October 2003. She said she made the suggestion because David was still distressed.
Mrs Withyman said that her husband had taught the plaintiff how to shoot a gun. She said she knew of a Mr Merv Malcolm, a retired football coach who had coached the plaintiff in his under 16 year. She was unaware of any conversation between her husband and the coach about the plaintiff being in trouble.
Mrs Withyman firmly rejected the suggestion that she had used a friendship with Mr Roxborough to get the plaintiff into Carenne. She said that she knew Mr Roxborough's wife, Anne, who was also a nurse at the Bathurst Base Hospital, but they were not friends. Ms Blackburn's suggestion that improper influence was used to gain the plaintiff's admission to Carenne was never substantiated.
Mrs Withyman said that her son had friends at Carenne but they did not visit him at home because she was a shift worker and it was not easy to have them over, especially as some had disabilities. She said the plaintiff had a lot of friends from outside the school and she accepted that his friends could have attached a stigma to David because he went to Carenne.
A number of suggestions of impropriety were put to Mrs Withyman, which she rejected. These included the influence of her husband with the police and the influence of her son Mark, a policeman in Queensland, in relation to legal problems encountered by her sons Adam and David. No evidence was provided by Ms Blackburn to prove these allegations and I reject them.
Mrs Withyman said that the plaintiff adored his nieces (the daughters of his sister) but she emphatically said that he was never left alone with them. I had the impression that this answer was given in a defensive manner but absent any other evidence on the topic, draw no conclusion from this impression.
The plaintiff was the next witness. His manner and presentation immediately contradicted the history of violence, aggression and defiance that had become attached to him through the evidence of his mother. He was quietly spoken, sometimes apparently on the verge of tears and on one occasion, in tears. In his manner of speaking and general demeanour he presented as a child in a man's body. As his evidence in chief continued there were occasions when he spoke inappropriately, in terms of his use of language and was also derogatory of the second defendant, once referring to her as "it". The picture in cross examination was sometimes different when he reacted to perceived attacks on his credit with aggression.
The forensic approach taken on behalf of the plaintiff, and I do not say this critically, was to limit his examination in chief to specifically avoid him having to tell the court, in chief, about the details of his sexual encounters with Ms Blackburn. These details were provided by the tendering of a record of interview between a Mr Ray and the plaintiff that had taken place at the plaintiff's sister's home on 28 October 2003 (Exhibit U). Mr Ray conducted the investigation on behalf of the Department of Education. The first defendant did not object to the tender of this document although noted that its conclusions could not be relied upon. The record of interview is effectively a statement by the plaintiff.
Ms Blackburn did object to Exhibit U but founded her objection on the fact that the plaintiff had been cross examined about the document in proceedings in the Industrial Relations Commission. These proceedings had been brought by Ms Blackburn against the Department of Education to challenge her dismissal from employment. Consent Orders resolved the proceedings and I could not see any form of estoppel, if that is what Ms Blackburn was in reality arguing, arising in respect of the statement. I was, however, concerned to ensure that the statement was otherwise admissible. I thought it fell within Section 64 of the Evidence Act 1995 but consistent with this section I did not allow it to be tendered before the close of the plaintiff's evidence in chief.
I have mentioned the statement at this stage because it provides an example of the difficulty created by the plaintiff's admitted tendency to embellish. It seemed to me, on going through the statement, that it contained a number of allegations that were likely to be fanciful. When shown the statement, however, the plaintiff said its contents were true. This added, to the already difficult credit question, the extra facet that the plaintiff in his evidence did not distinguish between fact and fiction. He did not, for example, say about the document: "Some of it is true, but parts are not". He was not, therefore, accepting that he may have embellished or made up facts even though this concession was made by his legal representatives.
Returning to some aspects of the plaintiff's evidence, he said that he was unhappy at Bathurst High School where he had been in trouble for wagging and fighting and on one occasion for keeping a lookout for boys who were lighting fires in the toilet. He said that he enjoyed Carenne.
The plaintiff first met Ms Blackburn in 2001. He thought she was "OK". She was a good teacher who liked to help him. She was not his teacher in 2001 or 2002 but he used to talk to her because he "just needed somebody to talk to" (T 356.49). He said he was told by Mr Roxborough and Ms Rowe (a teacher's aide) to stop going to the Junior School to talk to Ms Blackburn. He did not obey Mr Roxborough's instruction not to go to the Junior School but did not know why that was the case (T 357.47).
Toward the end of 2002 he said that Ms Blackburn told him she was going to be his class teacher in 2003. He said that he "thought that was cool" (T 358.15).
In 2003 the plaintiff appears to have had two teachers, Ms Blackburn and Mr Terry Neal. In the first month of the school year Ms Blackburn's involvement with the plaintiff seems to have been to take him to work experience locations. He said that he felt he could talk to her about his private life and she sometimes reciprocated about her circumstances.
The plaintiff said he did not recall any incident in August 2002 at Ms Blackburn's house. I note that in his opening senior counsel for the plaintiff said: "In August 2002, David first visited Ms Blackburn's house, arriving uninvited and remained for some hours. She reported this visit to the school counsellor" (T 10.19).
I mentioned this discrepancy to Mr Marshall and he said the evidence about the incident would come from another source. This was a variation of the plaintiff relying on evidence that was contradicted by his own testimony.
In February 2003 he said that he and Ms Blackburn were "mucking around at the pool" and, after he nudged her, she fell in. He then said: "Mr Neil tried to come over be hard and tried to mouth off at me and I got the shits with him and walked off." (T 360.13).
Following the swimming pool incident the plaintiff said he spoke to Mr Roxborough about the Behaviour Contract (Exhibit N). He said that it had been read to him and he understood the words: "From this point on there is to be no contact by me with Ms Blackburn". He did not tell his parents about the contract because Mr Roxborough said that he would not tell them. He also said that he did not think it was important that they should be informed.
Following the acceptance of the contract the plaintiff said there was contact with Ms Blackburn in the classroom after about a week and a half.
The plaintiff said that a little later Ms Blackburn came to watch him play football. After the game they went to her place where they had sex. It was at this stage that the interview with Mr Ray was introduced and the general question asked about whether its contents were true (T 365.40).
The plaintiff said that after first having sex with Ms Blackburn he continued to see her at school and had contact with her in the classroom, the playground and the photocopy room. From time to time he would touch her "in the arse" (T 393.26). There was also contact with her in the motor car when she took him to TAFE or work placements. I understood that other children were also sometimes in the motor vehicle but it was when the plaintiff and Ms Blackburn were alone there might be some physical contact. On one occasion she told him not to kiss her so that they would not be found out.
The plaintiff was shown Exhibit R. He said he had received it, by hand, from Ms Blackburn before he went to Darwin. It had earlier been shown to the plaintiff's mother who said that it did not reflect something the plaintiff might write and was beyond his literary capacity. Because the document was admitted by consent I later asked the second defendant whether she accepted that she had written it. She told me she did not. I will return to the document below. Exhibit S is a handwritten card that the plaintiff said he had also received from the second defendant. It does not, however, contain the admission of salacious conduct that is found in Exhibit R. The plaintiff said he had received a book "The Hitch Hikers Guide to the Galaxy" and a game from the second defendant.
The plaintiff said that his intention had been to work as a welder and he had attended TAFE and the work placement for that purpose.
He said that he was "gutted" at the break up with Ms Blackburn and it still upset him (T 380.30). It was at this stage that he was openly weeping in the witness box. I took a short break to allow him to compose himself.
The plaintiff said that a couple of days after the break up he had hit Ms Blackburn because she was saying mean things. He said:- "She just told me that I was a schizo. She couldn't trust me no more. I had a bad attitude problem." (T 381.22) 85. The plaintiff said that he came to know what an AVO was and he followed the orders most of the time. He breached the first order because "I wanted to tell her I was sorry". He could not say why he did not telephone her.
Whether in custody (on remand), or in gaol, the plaintiff said he felt upset, worried and scared. He knew there were bad people in the Bathurst Correctional Centre from stories his father had told him.
The plaintiff was asked about the various jobs he had obtained since October 2003. He said he enjoyed the work at Bindaree Beef in Inverell where he was living on his own and coping well. He eventually lost the job because he had an argument with one of his co-workers. He felt that the locals did not like "out of towners".
The plaintiff said he liked working with Mr Marcel Gittany. It was part-time labouring work. He said he lost contact with Mr Gittany when he went to gaol. In August 2005 the plaintiff worked at the Rangoli Restaurant where he was mostly involved in food preparation and washing up. He said he lost the job because the landlord of the building in which the restaurant is located is Mr Paul Theobald who is the second defendant's partner. He referred to Mr Theobald as "its partner". He alleged that Mr Theobald had caused him to be sacked.
The plaintiff worked at the Kelso Hotel for over a year where he seems to have been mostly in the kitchen and on occasions was able to prepare dishes that he had been taught at TAFE. The job came to an end when he was left in charge and found himself "doing everything". He said that was not acceptable and he walked out. In giving this evidence the plaintiff demonstrated some of the anger that had been described by his mother and which is referred to in many of the documents in the case.
After being released in June 2009 the plaintiff first stayed with his brother Adam in Newcastle because his "parents didn't want me". He did later move home and in November 2009 fell off a horse injuring his low back. He said he was in hospital for 10 days and wore a back brace for four or five weeks. By mid February 2010 he had fully recovered. He said that he gets on "OK" with his parents. He no longer breaks things because he felt he was now more mature. He spends his time training his dog and playing with the horses. He watches a little TV. He would like to work, perhaps in welding or gardening or any other job involving the use of his hands. He said that he now picked his friends more carefully and did not like going out as much. He said he was "young and stupid back then". I found this comment interesting because it suggests a recognition on his part that his previous behaviour was wrong but not because of his relationship, whatever its nature, with Ms Blackburn.
The plaintiff said he was now taking antidepressants, which he purchased himself. He had found counselling helpful to deal with his problems although also sometimes found it repetitive and boring. He said that he saw Ms Blackburn in Bathurst from time to time but he did not approach her. Seeing her made him feel emotionally sick. He said that during the relationship with Ms Blackburn they had discussed their future that included "us getting married, us having kids" (T 398.34). Ms Blackburn had mentioned these matters on a return trip from Wagga Wagga. She had said "now you've met half of my family now its time to meet the half of my other family so we can get married" (T 398.45).
Ms Diana Minato was interposed, by consent, during the evidence of the plaintiff. This was done to accommodate her convenience as she had travelled from the ACT. Ms Blackburn, in her final submissions, said that she had not been prepared to cross examine Ms Minato and suggested a degree of unfairness had arisen. Ms Minato became a key witness, if not the key, witness in the plaintiff's case. Had I appreciated her significance I would not have allowed her to be interposed. However I do not think Ms Blackburn suffered any prejudice. She was able to question Ms Minato with a good deal of 'admissibility' leeway and she made no application to have her recalled for further cross examination. The importance of Ms Minato would also have been evident to Ms Blackburn from Ms Minato's involvement in the Industrial Relations Commission proceedings. I also note that before Ms Minato was called, Mr Marshall said this: "I'm seeking your Honour's leave to interpose an interstate witness. I have my learned friend, Mr Blacket's consent to that, and I've spoken to Ms Blackburn yesterday. I believe she consents to this course." (T 405.15) 93. Ms Minato became friends with Ms Blackburn when they studied together in a Teacher's Degree at Charles Sturt University in Bathurst. They graduated in 1995. A year later Ms Minato moved to Canberra but they kept in touch, mainly over the telephone but increasingly by email as time went by. I gathered that around 2003 they would speak on the phone about once a week.
Q. Did you respond to that? I mean did you say something? A. Yes I would have. I would have said words to the effect, who is this person, and you know, how much younger is this person than you, yeah. Questions trying to find out more about the person in question.
Q. Were there other telephone conversations before you went overseas, concerning this person David? A. Yes.
Q. Can you recall in another conversation with Ms Blackburn, or do you recall the contents of another conversation with Ms Blackburn? A. Yes I do.
Q. Can you relate that conversation, at least parts that you can recall in, "I said", "she said". A. Mm-hmm. She said that she had - they had had sex, they had slept together. Essentially that was it, and I - I said words to the effect that, are you sure that this is the right thing to do." (T 410.17)
"Q. I want to find out from Ms Minato, what other information you found out about David, but that can only come from Ms Blackburn. Did she say anything else in subsequent conversations about David? A. Yes. He was - she said that he was a student at her school and that he had some learning difficulties or some difficulties in terms of him being at that particular school, but there was something that attracted her to him because there was an element of excitement about him being younger." (T 411.39)
"Q. What did she say to you? A. She told me things like she said - she talked about things that they had done together, so, you know, we went to Sydney, or he came over, or I saw him in town. Or he spent the night.
Q. Do you recall anything you might have said in response to this information? A. I said words to the effect, reminding her that, you know, I said, it - it really should stop. It needs to. You need to do something about this.
Q. What did she say to your advice? A. She took it on board, but she said that she knows - she knew - I know that it's wrong, but, you know, I don't want to do anything about it at this point.
Q. Do you remember a phrase you used in response to that about the relationship? A. That it would come back to haunt her." (T 413.28)
"Q. Going through to maybe September, did the tenor of your conversation change? A. Yes it did.
Q. Did Ms Blackburn say anything to you that was different about David? A. Yes she did. She said that he had started to become more physical with her, more aggressive with her and that she - she said that she was becoming increasingly fearful for her safety and for the safety of her daughter.
Q. Did you say anything to her in response to that information? A. I reiterated. I said, Anna, you need to do something about this. You need to tell somebody. You need to end the relationship." (T 413.28) 95. From 2004 to about July 2008 the friendship continued with each participant occasionally visiting the other and having overnight stays. The end of the friendship was precipitated by a series of emails starting on 22 July 2008 when Ms Blackburn wrote to Ms Minato. The emails are in Exhibit T. The significant portion of the email dated 22 July 2008 is:- "I need a statement from you saying that you and I were very close during 2003 and to your knowledge I was not in a sexual relationship with David Withyman. I also need to describe the times that you did see David that he came to my house unannounced and refused to leave without a lot of coercing when you were there in early October 2003." 96. The only occasion when Ms Minato may have seen the plaintiff was in October 2003 when she visited Ms Blackburn in Wattle Flat. She described her observations in this way:- "Q. At the time of that visit, did you see a man come to the door? A. Yes I did.
Q. Did you speak with that man? A. No I didn't.
Q. Did you see him clearly enough to identify him? A. No, I didn't.
Q. Did Ms Blackburn go to the door? A. Yes she did.
Q. Did you hear her have a conversation with this man? A. I heard a conversation taking place, but I did not hear specifically what was being said.
Q. Did the conversation end? A. Yes it did.
Q. Did the man leave? A. As far as I'm aware, yes.
Q. Did you have a conversation with Ms Blackburn about the visitor? A. Yes, I did.
Q. What did she say? A. She said that it was David. She said that she was still fearful for her own safety and for the safety of her daughter. That she didn't feel that she could do anything about it because of his increased aggression." (T 414.4) 97. I note here that the plaintiff's version of the visit is different in that he said he had some conversation with Ms Minato which included an exchange of names:- "A. Probably came in through the back door like I usually do. I usually come in through the back door. I never used to use the front door.
Q. Were you introduced to Ms Blackburn's friend? A. Yes.
Q. What did you say to her and what did she say to you if anything? A. Not much ." (T 538.24. See also T 603.43). 98. Returning to the emails in Exhibit T, after the email of 22 July 2008, Ms Blackburn wrote on 18 August 2008, this time stating that she was attaching her own affidavit. This does not seem to have occurred. The email contains this sentence:- "Once again I need a statement from you which says that when you met David he had arrived at the house when you were there and that he had to be coerced into leaving, a description of the house where you were and that we talked at length about most personal matters, that you would have known if I was in a sexual relationship with David and that I wasn't and that I told you that I was really worried about what he would do to stop him from contacting." 99. Ten days after the above email Ms Minato wrote back asking for the affidavit which had apparently not been attached to the earlier affidavit. The subject of this matter is "the thing". There was no evidence to explain these words. In the next email, on 28 August 2008, Ms Blackburn seems to have attached her affidavit and said that she thought her barrister would want to talk to Ms Minato. A second email on the same day, from Ms Blackburn, attached a draft affidavit prepared for Ms Minato. This document follows the second email dated 28 August 2008 in Exhibit T. The draft affidavit contains these paragraphs:- "14. I am aware that David Withyman has alleged that he and Anna were engaged in a sexual relationship throughout the material period. I certainly had no knowledge of such a relationship at any time during the material period.
Q. Would you like to just comment on that? A. I guess where I'm coming from, she had made a terrible choice, but I couldn't fault her on being a good friend to me and being supportive et cetera, even caring about her family, her students. It was this particular decision that she made, it wasn't - it's not as though she, you know, had a thing for students, et cetera, that she looked for that kind of thing, she'd gotten herself - made a bad decision and gotten herself into something that she shouldn't have, but I don't view that necessarily as a means - I still wanted to support her, any way I kind of could, in this regard, I didn't know how other than to encourage her the best way I could to end the relationship and to seek help, et cetera, et cetera. Q. What about between the period when she had obviously ended the relationship and when you phoned up, she had done something which you disapproved of, you're not being criticised for that, but you - well, to put it this way, why didn't you phone up the Department in 2005 or 2006 or '07? A. I guess I struggled a lot, I've struggled a lot with it, ever since I've kind of had knowledge of it in terms of what do I do about it. I didn't - I was - basically I didn't know where to go. I felt that maybe there was - there's not only a risk to Anna herself in terms of her teaching, and her relationships with people in general but also the fact that it could kind of incriminate myself in some way, shape or form, and also my duty, my duty to her as a friend I guess and that confidentiality." (T 467.1) 109. It is also to be remembered that Ms Minato did not contact the Department until after the series of emails that, on her evidence, amounted to a request to be dishonest. This would, no doubt, have affected her attitude toward Ms Blackburn.
(b) There is no apparent reason in May or June of 2002 for there to be any animosity between Ms Blackburn and Ms Minato. The incident described by Mr Theobald (see below) did not occur until June 2005.
(c) Although Exhibit 2D43 is certainly consistent with a spiteful Mr Wells, it is equally, or perhaps more consistent with the complaint of a concerned father worried about things told to him by his daughter.
I can thus see no basis on which to conclude that Ms Minato's evidence was a product of, or associated with, any conspiracy between her and Mr Wells to harm Ms Blackburn. 113. By the end of the case Ms Blackburn had obviously come to appreciate how damaging the evidence of Ms Minato was to her position. In her final submissions she extended the conspiracy I have just mentioned to include Dr Corbett-Jones, Mr Wilcox and Senior Constable Lloyd. Her submission, to the extent that I understood it, was that Mr Wells had somehow influenced these people, and Ms Minato, to either give false evidence or at least to render their memories unreliable. If Mr Wells was behind the false accusations against Ms Blackburn he would not only have had to influence the above people but also the plaintiff. Suffice to say there was no evidence whatsoever upon which I could find a widespread sphere of activity by Mr Wells designed to support or create false allegations against Ms Blackburn.
Q. Why did you do that? A. Because they're smart-arses they don't know how to treat women right. They treat them like hos instead of like ladies that they are. They think they can come to a town and do whatever they want." (T 506.4) "Q. Are people from Orange a bit like university students who go to Bathurst? A. No, they're a bit like people from Mudgee.
Q. They're a bit like people from Mudgee, are they? A. Yeah.
Q. Why? A. Because I just don't like them. Because they're from Orange." (T 536.32) 119. Notwithstanding the plaintiff's chivalrous defence of women confronted with the unseemly attitudes of university students, the plaintiff when dealing with his own "girlfriend" said this:- "Q. You didn't-- A. If I was such a boyfriend I wouldn't have left her in a temper like that, would I? If you're a boyfriend and your girlfriend was going off, would you just leave her in a fuckin' - in a state that she is, or would you stay there and try to calm her down?
Q. If she didn't want you in the house you were obliged to leave, weren't you? A. Yes. But I'm a big man, I don't let my girlfriend - I don't piss off when my girlfriend gets pissed off, I try to settle her down." (T 575.34) 120. The just quoted passage also raised another inconsistency, not just in the plaintiff's evidence but within the very make up of his case. The plaintiff insisted that there had been only one assault of Ms Blackburn (T 537.40). Later in the evidence during discussion of a possible estoppel arising from pleas of guilty to more than one assault his learned senior counsel said this:- "I can assure the court and Ms Blackburn that what he has pleaded guilty to we admit. The plaintiff may give answers inconsistent with that but we stand by what I have just said." (T 591.1) 121. This statement from Mr Marshall SC again starkly highlighted the point I have already made that the plaintiff was, to some extent, not relying on his own evidence. It is not uncommon for a plaintiff to deny or distinguish things he may have said in a previous circumstance, such as in a history to a doctor, or a conversation put to him as having occurred with another person. What is different here is that the plaintiff is not relying on his own evidence in the witness box. This, of course, does not apply to all of his evidence but it does raise the extraordinary situation of legal representatives saying to the court: we act for the plaintiff, but you should not believe everything our client says.
Q. Are you sure about that? A. Yeah. Q. Do you remember an occasion when your father was so upset with you, you pulled a knife? A. No.
Q. You remember him breaking the door of your bedroom down? A. No.
Q. After you ran in there with a knife? A. No.
Q. Do you ever recall an occasion when your parents came home and found that you'd damaged furniture in the house? A. No." (T 507.47)
A few questions later, however, the plaintiff accepted that he "damaged a large number of doors in the house" and "punched holes, and kicked holes in walls" (T 508.24). 126. The plaintiff was asked about his use of marijuana. He said that he did not think it affected his behaviour; in particular it did not make him more impulsive, volatile or prone to fits of anger (T 507.27). A little later he described a certain benefit (T528.35).
Q. Well what's the difference in terms of being dirty between biting someone on the nose and hitting her? A. Hitting is with your hand, why would you put your mouth near somewhere where somebody wipes their boogers out of their nose, you know?
Q. It was dirty in that sense? A. Yes." (T 551.46) 131. The plaintiff denied going to Ms Blackburn's house in August 2002. I do not accept his evidence about this. He also rejected the detail of the visit put to him including saying that she had not made him a cup of tea because "I don't drink tea so no" (T 521.29). I note, although I do not attribute a great deal of significance to it, the contradiction in his evidence when he agreed that after the incident on 12 October 2003, at Wattle Flat, that he and Ms Blackburn had a cup of tea together (T 577.23). In relation to this cup of tea I also find it incredible that following the incident the plaintiff would have then shared a bed with Ms Blackburn for the night, at all, let alone in the manner that he suggested (T 578.23). I note the contradiction is between the plaintiff's evidence and his own version to Mr Ray (Exhibit U, page 18, line 760).
The plaintiff said that on the return from the 'Opera House trip' he had slept in the same bed in a motel as both Ms Blackburn and her daughter Norah. No sex had taken place (T 621.21).
After Mr Blacket, for the second defendant, cross examined the plaintiff about the interview with Mr Ray he moved on to the ERISP interview with Senior Constable Nightingale. The plaintiff had only a vague recollection of this interview but as matters were put to him, arising from its contents, the same pattern emerged of him agreeing with some matters, denying others and also not recalling some portions. The impression I had earlier gathered of the plaintiff's almost total lack of reliability as an historian was strengthened. Often the answer to an inconsistency between evidence and a statement given much earlier is that the latter is likely to be more reliable because the events would then have been fresher in the interviewee's mind. This is not the case here, because, as is frankly admitted by the plaintiff's camp, he is prone to exaggeration and dishonesty. At the end of the day the simple point is, unless otherwise reliably corroborated, it is very difficult to accept the plaintiff's evidence.
There were also times when his evidence seemed to change over one or two questions. For example he was asked whether he became upset when Ms Minato said "mean things" about him to Ms Blackburn. He said that would not have upset him. A very short while later his evidence was to the contrary. I already noted above the conflict with Ms Minato's evidence in that she said she had not spoken to him at Wattle Flat but he described a conversation. I prefer her evidence.
The plaintiff said that Ms Blackburn had become pregnant to him, on two occasions at least, and she had told him that she had had a "needle in the arm" to stop the pregnancy. I am unaware of whether an abortion is possible this way. However, in the plaintiff's favour, a matter did arise in Ms Blackburn's evidence about her being administered a contraceptive injection in July 2003 which could be the source of the plaintiff's evidence. I deal with this issue below.
The plaintiff said that a WB utility ('ute') is the same as an HQ ute; it is made by Holden. The plaintiff said that Ms Blackburn had bought a vehicle of this type for him to avoid the neighbours talking about his green ute being frequently parked at or near her property. The plaintiff gave other evidence about efforts to conceal the relationship. He also said he had not discussed the relationship with his sister and she had not spoken to him about it.
When the plaintiff gave evidence about not going to Wattle Flat in August 2002 I had the impression that he rejected the suggestion because he did not have his licence at that time and would not have ridden his bicycle the necessary distance. However his evidence was that in 2003 he had ridden his bicycle to Wattle Flat on a number of occasions.
The plaintiff was cross examined about a second record of interview, this one occurred on 12 October 2007 and followed the plaintiff's arrest on 25 September 2007, for firearm offences. He had been found in a motor vehicle with a loaded shotgun. (Details of the conviction and facts relied upon by the police can be seen in Exhibit 1D1.)
The cross examination about this second interview followed the same pattern as the earlier interview, highlighting agreements with the record, disagreements and failure to recall. Of particular relevance was his answer to Question 139 where he told the interviewer he had been smoking marijuana since the age of 11. He accepted he told this to a number of people but said the fact was not true (T 643.9). He also said that he had learned to weigh marijuana on electronic scales in Year 6 or 7. He later said it was when still at primary school.
As this portion of the cross examination continued I grew concerned that the plaintiff was simply not following some of the questions and answers. For example, he was asked whether speed made him aggressive and he said no. A few minutes later he agreed with the suggestion that it did make him aggressive. I consequently asked the plaintiff if he understood the questions and he said he did not. I raised my concern with the parties and gave Mr Marshall leave to talk to his client about his state of health and capacity to answer questions despite being under cross examination.
Following my observations the plaintiff indicated that he wished to continue with his evidence. He started off by saying he wished to change his earlier evidence about speed, to say it did not make him violent; rather he took it to stay up. He was then asked a number of questions about the incident in September 2007 which led to his arrest for firearm offences. He agreed with some portions of the matters put to him but not with others. I think his evidence, however, was generally consistent with the fact sheet which is in Exhibit 1D1.
There was some obvious confusion about proceedings arising from a phone call he had made in May 2008 in which he is alleged to have threatened to drive his car through Ms Blackburn's home. Essentially he did not remember any detail. The plaintiff, I thought more than before, at this stage began to rely on a lack of memory to deal with many questions.
Despite this, the plaintiff agreed that he had been charged with assaulting his father who had not allowed him to use his utility. The plaintiff had damaged his own vehicle some days before and did not wish to go to work at 8am because he started at 10am. I had the impression that he had attacked his father for no reason other than the inconvenience that was caused to him.
The plaintiff was asked a number of questions arising from histories he gave to medical practitioners. Not surprisingly he could not recall many of the things he is alleged to have said. He did, however, deny telling Ms Robilliard that he intended to kill Ms Blackburn, her partner and their baby and then commit suicide himself.
He did not remember telling Ms Robilliard that he had started using drugs at age 11. He said he had not started smoking "pot" in sixth class because he was too much into footy. He had, however, weighed it for others to bag it up because he liked to help them. I found this evidence unconvincing. He said that he had told the doctors that he had started drug use at age 11 to 'big note' himself. (See also paragraph 139,above.)
He said that from age 17 or 18 he had used cocaine and liquid speed. His friends had "shouted" him in respect of the costs of the drugs. He said he had only used cocaine or speed at Carenne on a couple of occasions. He said he started drinking alcohol from age 13 after footy games. He agreed with the history given to Dr De Saxe that he had had his first sexual experience at age 13 and that he had had quite a few sexual relationships before Ms Blackburn. He also agreed that he had beaten up people after "footy"; he estimated on about six or seven occasions. He then said this:- "Q. And you used to get in fights with people from outside Bathurst who were from those towns, is that right? A. Yes. Yes.
Q. You've told us, this is before you met Ms Blackburn, that you had fights with university students in Bathurst? A. Yes. Q. They were out of towners and they didn't respect women, is that right? A. Yeah.
Q. Was this the position; after you broke up with Ms Blackburn you continued to have fights with people as you had before? A. Yes. Yeah." (T 688.44) 147. The plaintiff said that he had had some relationships since Ms Blackburn, one with "Jodie" for three or four months that ended when he discovered she had removed certain items from his motor car (T 689.38). Another relationship had been with "Erin" and also lasted three or four months. He denied this relationship had broken up because he had been violent.
"Q. If you don't like a situation you simply won't comply with it? A. Yes. HIS HONOUR Q. Do you agree with that one? A. Yes. BLACKET Q. That gets you into arguments? A. Yes. Q. Disagreements with people? A. Yes. Q. It's resulted in you losing jobs? A. No. Q. It's resulted in you getting in fights? A. Yes. Q. And being at times, highly aggressive? A. No. Q. To the point where you've physically beaten people? A. Yes." (T 737.29) (b) He held to his insistence that he had only assaulted Ms Blackburn once. This was obviously wrong and conceded to be so by his legal representatives.
(c) He said he had not broken up with his girlfriend Erin as a result of violence after a tantrum. He did, however, agree that in April 2007 he had "kicked the shit out of a car" when it would not start. Erin was there and they broke up two or three weeks later. He related the break up to her parents not liking him. They were "upper class" .
(d) He agreed with a history to Dr Allnutt in July 2009 that after the breakdown of the relationship with Ms Blackburn, he had gone out to hurt people to relieve his frustration. He said these were people he had known all his life and it "was payback time" . The targets of his revenge were from both primary and high school. He said he bashed so many people that his friends would not go out with him. He found bashing people a means of getting anger out, and it made him feel better. He felt no remorse.
(e) The plaintiff said that he never liked the Daihatsu Terios vehicle he owned. His father had forced him into purchasing this vehicle. He wanted to have a ute with which he could go pigging. 154. The plaintiff said that he had some friends in a 'bikie' gang. He would not disclose the name of the gang. I did not force him to do so after he said that revelation might lead to him being killed. He said that he had first met the bikies when he played football with some of them. He was 15 or 16. He said he had never been to Western Australia and had never held a gun licence. The shooting that he did was of kangaroos, rabbits, foxes and cats. Pigging was done with dogs, not guns.
The plaintiff said that from time to time Mr Terry Neal took students to placements but this was only occasionally and certainly not more than Ms Blackburn. He was asked if he could identify any teacher's aides that he had seen in the court premises and he mentioned a Laura who was a friend of his sister. She had been a 'prac' teacher in his class for about six weeks.
The cross examination by Ms Blackburn was sporadic with frequent changes of topic and themes not being followed through. However she generally put matters going to her Defence and her Cross Claim. With the agreement of the plaintiff's senior counsel I also suggested various topics she needed to cover. A lot of the cross examination by Ms Blackburn covered areas already dealt with by Mr Blacket.
The second defendant commenced cross examination of the plaintiff by asking him whether any other person beside herself had taken out an AVO against him. He said no. This was obviously wrong as his mother had given evidence of an AVO taken out by her and her husband against the plaintiff.
The plaintiff said he did not dislike Ms Blackburn and he agreed that he was once in love with her. He also agreed that he had felt he could tell her anything and trusted her with information. He had not, however, told her that one of his half sisters had died or that he had had a sexual relationship with a Mrs Warn. He also denied assaults on Mrs Warn as described in paragraphs 30 and 36 of her affidavit. For reasons I give below I have no hesitation in preferring Mrs Warn's evidence about these incidents.
The plaintiff was shown photographs of Ms Blackburn taken on 14 October 2003. He said he could not remember if he had caused the bruises disclosed in the photographs. If he had caused these bruises it would clearly contradict his evidence that he had not assaulted her on this occasion. He was also shown photographs taken after the incident in the motor car. He again denied that he had bitten Ms Blackburn on the nose. This was despite the obvious markings on her nose.
The plaintiff maintained his insistence that he had only assaulted Ms Blackburn on one occasion. He had of course pleaded guilty to other assaults. He specifically denied an assault on 26 March 2004. It is obvious from Exhibit 1D1 that he pleaded guilty to this assault.
Ms Blackburn asked the plaintiff about spending time with his nieces. He said he had spent time with them alone and had looked after them alone. This was in direct contrast to his mother's evidence who, as I have mentioned, strongly denied the assertion that the plaintiff had ever been left alone with his nieces.
A point that seemed to cause the plaintiff some distress was the suggestion put to him that he had attended a funeral. I gathered the source of his disquiet was that it was the funeral of a good friend who had committed suicide. This questioning was an example of Ms Blackburn not developing a purpose to her questions because nothing was put as arising from his attendance at the funeral.
The plaintiff denied any impropriety with a Ms Smith, a teacher at the school during 1999. He also denied that there was a rule that the Under 18 rugby team was not allowed at the bar even if some of the members had reached 18.
Ms Blackburn asked the plaintiff if he had damaged her car with a baseball bat. He denied it, but was aware of the car needing repairs. It was put to him that there were no photographs of him in bed with Ms Blackburn. He said they could not be found.
Ms Blackburn put to the plaintiff as a general proposition that there had been no sexual activity between them either in school or out of it. He disagreed.
Ms Blackburn asked the plaintiff about her father. He agreed that he had lived with her on and off during 2003 and had some times looked after Ms Blackburn's daughter, Norah. He was retired. He had also come to watch football with Ms Blackburn.
The plaintiff was asked about a consultation he had with Dr Allnutt that includes a reference to a report of Mr Palmer, a counsellor. The latter report refers to the plaintiff having a loving intimate relationship with a teenager when he was aged 15. It seems clear that there is an error in the recording of Dr Palmer's report. Despite this, however, the plaintiff did agree that he had had such a relationship with "Skye" when he was aged 15. This is somewhat at odds with his other descriptions of the relationship, which include his being unfaithful to her.
Dr Allnutt's report also refers to the plaintiff being particularly stressed and depressed when working in Inverell. Both the plaintiff and his mother's evidence were to the opposite effect, namely that he was happy and coping well when he worked in Inverell.
Ms Blackburn read a number of excerpts from the plaintiff's testimony in the Industrial Relations Commission to the plaintiff in cross examination. The plaintiff disagreed with some of his evidence in Commission. I was at pains to make sure that the plaintiff understood the process that was being undertaken in having parts of transcript read to him. For that reason I 'took over' some of Ms Blackburn's questions to make sure they were being put fairly. The following is an example:- "Q. This is the start, the first question about the topic: "Q. Mr Withyman, you just told Mr Benson that you recalled meeting Ms Blackburn's cousin? A. Yes.
Q. In Sydney? A. Yep." Agree so far? A. Yep.
Q. "Q. That was the same person you met at Wagga wasn't it? A. No."
Q. Then, carried on: "Q. You didn't meet that woman at Wagga? A. No. That was her brother, I'm pretty sure it was." A. I don't remember saying that.
Q. Well, do you think it was correct or not correct? A. Not correct.
"Q. You remember going to Wagga? A. Yes."
Q. "Q. And you don't remember meeting that girl at Wagga? [We're talking about this cousin, female cousin]. A. I don't think she was there, no."
Q. Is it correct or not? A. Not correct.
Q. "Q. So if she was there you didn't see her on that occasion? A. I can't remember."
Q. Then you were asked: "Q. Do you remember going to Wagga? A. Yes.
Q. And you remember meeting her male cousin? A. Yep.
Q. But you don't remember meeting her female cousin? A. No." A. That's incorrect.
Q. So, does it look to you that the transcript contains some errors? A. Yes." (T 842.48) 170. As a result of some suggestions that I had made the evening before, together with some additions from Mr Blacket, Ms Blackburn put a number of matters to the plaintiff. In summary, she put to him that there had never been sexual acts between them and that the trips he described, other than to Wagga Wagga, had never occurred. As to the former, the suggestion was that he used the trips as excuses to his parents for his absences. He maintained his position both in relation to the sex and the trips. He did, however, continue to "not recall" many matters, some of which were quite reasonably out of his recall, such as histories to particular doctors, but others which I might have expected him to recall. Some of his inability to recall matters included questions whose answers may not necessarily have prejudiced his case.
The plaintiff agreed that Ms Blackburn's father had attended a football game but said it was not the game that preceded the first sexual encounter. He said that he often knew of the whereabouts of Ms Blackburn's father but he denied this was because he was stalking her. He agreed that another classmate, Darryl, also played in the same team.
The plaintiff denied stealing Ms Blackburn's camera. He initially said that he could not remember if he had destroyed photographs taken with the camera. A little later he said he "most probably" had destroyed the photographs. In relation to the book given to him by Ms Blackburn he said he could not remember if she had given it to him to help improve his reading. It was put to him that he had cleaned her house without permission. As I understood him, he had cleaned her house on several occasions without her permission, but these did not include on 11 or 12 October 2003.
The plaintiff said he could not remember two telephone calls from Ms Blackburn, made on 14 October 2003. He agreed that Mr Terry Neal and Ms Sue Dibley had also used their cars to take students to and from TAFE. He did not remember a Ms Bagley using her car.
At the completion of the plaintiff's cross examination, but before re-examination, I gave leave to the plaintiff to call a witness who had travelled from Queensland and needed to return on the same day. This was Ms Laura Mahoney, a teacher. She qualified from Charles Sturt University in 2003. She was a friend of the plaintiff's sister Mauricia. She lived next door to her in 2003 and had met Mr and Mrs Withyman.
Part of her course included a six week internship at Carenne. She began there in mid-August 2003 and remained until the end of September. Mr Terry Neal supervised her. As her internship progressed she was given more responsibility, ultimately taking some classes, but always under supervision. She was mostly in the senior class that was taken by Mr Neal and Ms Blackburn.
In addition to teaching duties she also had duties in the playground and with the school bus. She recalled on a particular occasion that she saw two students, Tom and Cherie, standing on stools and looking into the senior class window. She told them it was not safe to do so. She was not able to look into the window. I have absolutely no idea what the purpose of this evidence was.
Ms Mahoney described a trip to the Bathurst Independent Learning Skills Centre with Ms Blackburn. On the journey she said Ms Blackburn told her that "she had a relationship with David outside school." (T 869.46). She did not respond and Ms Blackburn did not elaborate.
She said that on another occasion she arrived at school early and found the plaintiff and Ms Blackburn talking loudly to each other over a square table. She thought they were arguing but she did not hear what was said. When she arrived the plaintiff left the room.
On a further occasion, while doing bus duties, Ms Mahoney said that she saw the plaintiff arrive. She was standing in the position marked with an "X" in Exhibit W. She said she saw the plaintiff and Ms Blackburn "playfighting" in the position marked "D". They were running after each other and laughing. She said that she asked Mr Neal "what's the go with David and Anna?". He replied "David's just having nesting problems" (T 879.22). She asked him what he meant and he said he was having trouble leaving the nest. She later agreed that she understood this to mean that he was having trouble leaving Carenne because he had been happy at the school.
Under cross examination by the first defendant, Ms Mahoney described a range of problems that the children at the school suffered from. She described both Ms Blackburn and Mr Neal as good teachers. She said it was "a nice little school" but some of the behaviour of the students was not normal. She said that for example one student would get agitated if he did not get his way. Special strategies were needed to deal with these students.
Ms Mahoney said she had seen the plaintiff's sister at court. She had the impression that Mauricia did not want to know much about the allegations.
Ms Mahoney said she had been told about the allegations of a sexual relationship but denied that this knowledge had coloured her interpretation of what she had seen and heard in 2003.
The second defendant asked Ms Mahoney a number of questions about her routine and also about a seminar which is the subject of Exhibit 2D7. Ms Mahoney said she could not recall an incident where a student had asked a teacher to be his girlfriend but she said it would not surprise her in that school.
I was concerned that Ms Blackburn should put her position to Ms Mahoney, in particular in relation to the conversation about a relationship. This is what I said to her: "HIS HONOUR: Ms Blackburn, what she said you said was that you were having a relationship with David outside school. Okay? That's what she says. If you don't agree that you said that, you must suggest to her she's mistaken." (T 900.31).
Ms Blackburn said she understood. She later suggested to Ms Mahoney that the play fighting had not occurred. She did not suggest to Ms Mahoney that she had not made the comment about a relationship. However when Ms Blackburn was cross examined she gave a different version of the conversation: "She said that she was Mauricia's next door neighbour and that she knew David outside of school and I said that he came to Wattle Flat and I knew him from outside of school." (T 1905.3) When Ms Blackburn was quizzed about the use of the word "relationship" she gave this answer: "A. I can't be sure that the word relationship was not used, however it wasn't used in the way of people having sex. It was a friendship, not a sexual relationship. Now, if she said, "I am his friend from outside school and I said the same thing, it could have been that, but I don't think relationship was used as a word. It would not be a word that we would use other than our sexual partner ." (T 1905.24) 185. When the plaintiff came back for re-examination, again with a view to ensuring Ms Blackburn put her case to him, I reminded her that she had not asked him any questions about Exhibit R, the 'baby' letter. She took up the opportunity and asked the plaintiff if he had ever been to his father's place of work. He could not recall. He denied that he had ever been to his father's office and in particular that he had printed material off a computer in the office. He accepted that he had printed from a computer, presumably at home, but said it did not include rude jokes. Ms Blackburn suggested to him that she had never given him Exhibit R. He said she had. She then suggested that he had printed the document from a computer. He also denied this suggestion.
Under re-examination the plaintiff said that he had understood and obeyed the Behaviour Contracts in 1999 and 2001. He said that he complied with the 2003 contract for about two weeks and then "everything got back to normal". He said Mr Roxborough had spoken to him about the contract on one or two occasions but he could not remember what was said.
He was asked for his understanding of an assault. He said it meant "Laying into them, punching them" (T 918.43). These questions arose from his earlier evidence that he had only assaulted Ms Blackburn once. If his answer in re-examination was intended to explain his evidence about one assault then I reject it. I have no doubt the plaintiff knew what an assault was, especially as he had pleaded guilty to the assaults.
The plaintiff was taken to the transcript at page 582.44 and asked what games he referred to. He said he was talking about strip poker, food sex and daring each other. An example of a dare was him wearing Ms Blackburn's underwear for a week.
It is fundamental to the plaintiff's case on damages that his behaviour was substantially worse after the break up of the relationship than before. This was certainly the burden of Mrs Withyman's evidence and much of what the plaintiff said. It is also a theme through many of the histories. The defendants, to the contrary, suggest the plaintiff's behaviour following the break up was essentially a continuation of his 'normal' behaviour. No doubt to shore up the plaintiff's position, the topic was returned to in re-examination. Although the plaintiff said that his drug and alcohol use increased, the evidence was perhaps not quite as expected in relation to fighting. He said that before and during the relationship he also had fights. These occurred at parties, football games and in the main street. He went on to say that these fights had only occurred "once in a blue moon" (T 934 and 935). The fact is, however, that this, and other evidence, tends to establish a history of fighting both before, during and after the alleged relationship.
Although there may have been some confusion about when the bashing of university students took place, the plaintiff said these had occurred in pubs and he had not been to pubs before he was 18. The suggested inference was, therefore, that his bashing of university students probably took place after the break up. I do not draw this inference. He turned 18 in March 2003 so that he would have been able to attend pubs during the relationship with Ms Blackburn. I see his attending pubs and bashing people not as an indication of his reaction to the break up, but rather as giving him the opportunity to meet people who became his targets. I am satisfied that his willingness to engage in violence existed as much before as after October 2003.
The plaintiff was asked about some answers he gave arising from histories given to a Probation and Parole Officer, Mr Lorrier. The answers given in re-examination were to the effect that he did not remember these people so that his agreement under cross examination, with matters put to him about his history to them, should be treated with caution. This led to the discussion with senior counsel that I quoted in paragraph 48, above.
The plaintiff was in the witness box over seven days giving evidence on a number of topics. Absent acceptable corroboration, the plaintiff's oral evidence, together with anything said by him to any history taker or interviewer, must be seen as fundamentally unreliable. The effect of this circumstance extends beyond the plaintiff's case and into the defendants' cases. The defendants rely on many things said by the plaintiff in histories. For example, what he has said about fights or taking drugs from age 11 or about alcohol. All of these histories and admissions he made in his evidence are also subject to the reliability question.
Senior Constable Erin Lloyd was one of the officers who attended Wattle Flat on the evening of 12 October 2003. This police officer arrived with Police Constable Allen in response to a radio message. Senior Constable Lloyd said, in her evidence, that she first attended the home of Mrs Buscombe, the second defendant's mother. She had earlier been to the plaintiff's home but found it locked. She spoke to Ms Blackburn at her mother's house. She thought she was lying down at the time and the police officer began asking questions to ascertain the background to the call for assistance. According to Senior Constable Lloyd, Ms Blackburn seemed initially fine but as the conversation progressed she seemed to become reserved. Senior Constable Lloyd asked her male colleague to leave because she thought that Ms Blackburn might appreciate a "female to female" talk. Ms Blackburn then told the officer that she had been Mr Withyman's teacher for some years and that he had been at her premises before. She said they had become friends.
The police officer asked if there was a history and specifically posed the question: "Have you guys been in an intimate relationship?". Ms Blackburn replied that the relationship had been "just physical" (T 950.10). Senior Constable Lloyd later accepted that Ms Blackburn had denied an intimate relationship and did not qualify or withdraw the denial in the course of the evening (T 958.38).
The officer also said that Ms Blackburn had stated: "A. And that's when she said words similar to "Yeah, I know about the ethics of it, things just happened" or "Yeah, I know about the ethics of it, but it just happened". Something like that." (T 950.26) Ms Blackburn went on to say that it had ended the evening before but Mr Withyman had not wanted it to be over and an argument had ensued. Ms Blackburn said that she wanted him to leave her alone. She also added that she was anxious for the police to locate him because he had said he would hurt himself. 196. Following this conversation the police officers went to look for the plaintiff and after some five minutes came to Ms Blackburn's home. They had spoken to the plaintiff's parents at Mrs Buscombe's house and saw them again when they arrived at the second defendant's house. They found the plaintiff in a hysterical state, yelling, screaming and crying. He was struggling with his father and his shirt was off. He was "red as a beetroot". He said that he wanted to speak to Ms Blackburn to apologise for "last night". Ms Blackburn agreed to speak to the plaintiff. This occurred upstairs and mostly in the presence of the police officers. The conversation lasted about 20 to 30 minutes during which Ms Blackburn was observed to be emotional and the plaintiff to be both emotional and aggressive at times.
Senior Constable Lloyd said she overheard some of the conversation, which was to this effect. The plaintiff was apologising and saying that he did not want it to be over. Ms Blackburn replied: "I know, I love you too but it's finished, you can't come here anymore, I can't see you anymore." (T 953.32). This was repeated on a number of occasions. Senior Constable Lloyd said her ears pricked up when she heard the plaintiff say: "And what about the head job, doesn't that - you know, have you forgotten about that - that was good times" (T 954.10). Ms Blackburn was then said to reply: "Yes David they were good times, but there's going to be - that's got to stop".
The police officers then persuaded the plaintiff that they should take him to the hospital and get in touch with a medical health team. He ultimately went with them.
Under cross examination by the first defendant Senior Constable Lloyd said that her use of the word "intimate" referred to sexual activity. She also said that the plaintiff had initially told her that they had only kissed, but later said they had slept together. The officer did not put this to Ms Blackburn. The constable also agreed that she took the reference to ethics to concern the pupil/teacher relationship.
The officer was referred to evidence she had given in the Industrial Relations Commission and agreed that in her evidence she had said that Ms Blackburn had told her that she and the plaintiff had become friends and he had confided in her. The friendship had come from helping him with his anger and behavioural problems that were longstanding.
She said the plaintiff had told her that he had stayed with Ms Blackburn the previous evening and he wanted to apologise to her because he had been angry.
Under cross examination from the second defendant the officer said that events since October 2003 had consolidated her memory. I am not sure that the question bore the same meaning to Senior Constable Lloyd as I think was put on it by Ms Blackburn.
Ms Blackburn highlighted some differences between the plaintiff's mother's evidence about what had occurred outside Ms Blackburn's house but I do not think these are of significance. What I did think was of considerable significance was that the officer said that Mrs Withyman had told her that there were mental health issues involved and that she believed the plaintiff was suffering from depression. This was apparently longstanding. I attach significance to this evidence because it confirmed to me that the plaintiff's condition before 12 October 2003 was far from the rosy picture painted by Mrs Withyman.
Another notable aspect of Senior Constable Lloyd's evidence was that she said it did not occur to her that the plaintiff was affected by drugs or alcohol. She said she had a lot of experience dealing with people under these influences but she did not notice anything about the plaintiff in this regard. This, to some degree, contradicts the plaintiff's evidence about his condition on the evening of 12 October.
Senior Constable Lloyd did not agree with the suggestion that Ms Blackburn had not said that she loved the plaintiff and there had been no mention of a "head job". It was also suggested to the officer that Ms Blackburn was essentially acting on instructions to agree to everything the plaintiff said as a means of calming him down and getting him to leave the premises quietly. Senior Constable Lloyd did agree that she had asked Ms Blackburn for her help but did not agree that the teacher was under instruction. It occurred to me when I heard the officer's description of the conversation in Ms Blackburn's house that there was an element about it of appeasing the plaintiff, rather than necessarily agreeing with his assertions. I suggested this to the officer who said that Ms Blackburn had been forthright in her comments and did not back down. Despite this, I nevertheless remain of the view that the description of the events is at least consistent with Ms Blackburn attempting to placate the plaintiff.
The plaintiff called Mrs Margaret Rowe to give evidence. She is, and has been since 1999, employed at Carenne as a teacher's aide. She clearly, and made no secret, of the fact that she felt protective of and sympathetic to Ms Blackburn. I do not say that critically of her because she was open and plain in her sentiments.
The reason the plaintiff called her to give evidence was to describe certain events that occurred in 2002. During this year she worked under the supervision of Ms Blackburn in a junior class made up of children in the 5 to 7 year old bracket. They were amongst the 50 to 60 children in the entire school. All of the children at the school had disabilities.
She said that she came to know the plaintiff at the school. He was always courteous in his dealings with her. She was, however, aware that he had behavioural problems and he could be inappropriate with other students. Under cross examination by the first defendant she identified his involvement in fights, bullying and teasing of other pupils.
She said in 2002 it was unusual for a senior student to be in the junior section. Her classroom, and another classroom, were in a courtyard that could be closed, by a gate, so that children could not 'escape'.
During 2002, but she was not sure when, she noticed that the plaintiff would visit the classroom for up to 15 to 20 minutes a day. This occurred over about a two week period. She was concerned, not because of anything improperly done by the plaintiff, but rather because she wanted to maintain the privacy of the younger children. Some of them had personal needs, such as the changing of catheters, which she felt ought not take place in the presence of an older student. As a result of her concerns she spoke to Ms Lee Churches, the Deputy Principal, and also the teacher in the other classroom in the courtyard. She later said that she had, to some extent, spoken to Ms Churches both on her behalf and on behalf of Ms Blackburn. As a result of speaking to Ms Churches she understood that Ms Churches, in turn, spoke to the plaintiff. Following this conversation the plaintiff's attendance dropped off and he did not come as often for a couple of weeks. In this period he made one or two fleeting visits.
After the two weeks, however, he went back to his previous level of visiting. He would help put out equipment and generally chat. He spoke to both Mrs Rowe and Ms Blackburn. Mrs Rowe again became concerned and this time spoke to Mr Roxborough, the Principal. She said she was not comfortable having the plaintiff with the juniors. He said he would deal with it and obviously did because the plaintiff then did not come back for the rest of the year. She said that the whole episode of the plaintiff's visits covered about the length of a term but otherwise she could not be more specific in relation to timing. She said she told Ms Blackburn about speaking to Mr Roxborough. Ms Blackburn said that the plaintiff was just being pleasant.
In 2003 Ms Blackburn was teaching in the senior school and Mrs Rowe was no longer her aide. She did, however, see her from time to time on playground duty and during these times noticed that the plaintiff spoke to her. She made the point that the plaintiff was simply one of the students in the playground to whom Ms Blackburn spoke.
Under cross examination by the first defendant Mrs Rowe agreed that it was difficult to get the plaintiff to comply with directions. She described Ms Blackburn as a "nice" person, that she was that way with everyone. She said that students sometimes formed attachments and if the staff noticed them, they were closely monitored. She said she had never heard of any relationship between the plaintiff and Ms Blackburn.
Mrs Rowe described daily debriefing sessions that took place in the staff room at about 3.30pm. They lasted some 15 minutes. The teachers and the aides and staff could discuss things that had happened during the day. She never heard an issue being raised about Ms Blackburn and the plaintiff. She did, however, say that there were certain things that might be raised at a different level. She also described staff meetings that took place once a week. She described the school as a friendly place to be in 2003. Both Mr Roxborough and Ms Churches were approachable.
Under cross examination by the second defendant Mrs Rowe said that the aides and teachers spent a lot of time together in the junior school. She agreed that she had been looking forward to working with Ms Blackburn and they had a good working relationship.
Mrs Rowe recalled a teacher called Mrs Bev Warn but did not remember any incident between this lady and the plaintiff.
Mrs Rowe recalled that another high school student, 'CB', had come to her classroom from time to time, and sometimes with the plaintiff. He had simply chatted, however, and had not helped. Mrs Rowe was asked if she knew if the plaintiff had visited the courtyard classrooms in earlier years. She said she had made this enquiry of Ms Churches and another teacher's aide and was told that he had not done so.
Mrs Rowe was aware that in 2002 Ms Blackburn's de facto relationship with Norah's father had broken down and that she had taken leave of about two weeks. She had then returned working three days a week and job sharing with another teacher. Mrs Rowe said this was not a perfect arrangement for a young class.
Mrs Rowe said that the children liked Ms Blackburn. This interchange occurred:- "Q. Would you agree that the visits that (CB) were making was to seek me out as opposed to Terry? HIS HONOUR: You can ask the first part. Q. Did (CB) appear to be coming to visit Ms Blackburn? A. Yes. The children liked her. SECOND DEFENDANT Q. It's a crime. A. I know." (T 1017.37) 220. Mrs Rowe was aware that Ms Blackburn ran a group for children for families with behavioural problems and this had included 'CB'.
Mrs Rowe recalled that in 2002 Ms Blackburn had told her that the plaintiff had come to her home and that she had spoken to Mr Peter Perisce and sought advice. She was not sure when this occurred but later said she thought it was after she had spoken to Mr Roxborough about the plaintiff. Mr Perisce was the District Guidance Officer. He was based at Carenne.
In re-examination Mrs Rowe said that she had been puzzled by Ms Blackburn telling her David had visited the latter's house, but she had not spoken to anyone about it. She said that in 2002 she had a protective feeling towards Ms Blackburn, which continued to the present.
No lay witnesses were called on behalf of the first defendant. In particular no member of staff of the school gave oral evidence. The first defendant's case was limited to documentary evidence and the oral evidence of three medical practitioners. Two were required for cross examination (Drs Allnutt and Roberts), and the third, Dr Corbett-Jones, was called at the very end of the case to clarify his clinical notes. The evidence of these doctors is dealt with below.
The first defendant tendered a number of documents through Ms Blackburn when she was under cross examination. By this stage the first defendant had closed its case and I eventually took the view that this process was unfair to her. I said this to senior counsel (T 2052.49).
There were a number of matters that, certainly ostensibly, gave rise to an expectation of evidence from Mr Roxborough and Mr Neal. As far as Mr Roxborough is concerned, it is true that one of the most compelling of these matters stemmed from the evidence and affidavit of Mrs Warn. She gave evidence after the close of the first defendant's case. However Ms Blackburn had provided the plaintiff and first defendant with Mrs Warn's affidavit at the commencement of the case and signalled her intention to rely on the document and call Mrs Warn as a witness.
On the last day in which evidence was taken (23 July 2010) an application was made by the second defendant to tender the affidavit of Mr Neal, which had been prepared for the Industrial Relations Commission proceedings. For reasons which can be found in the transcript, I refused this application (T 2128.34). No application was made in respect of Mr Roxborough.
Both the plaintiff and Ms Blackburn submitted that an adverse inference should be drawn against the first defendant for its failure to call Mr Roxborough and Mr Neal to give oral evidence. In respect of the plaintiff the first defendant said that no such inference was available because the first defendant had tendered statements from the two potential witnesses. Support for this submission is to be found at paragraph 71 in the judgment of Sackville J in Singh v Minister for Immigration (2001) 109 FCR 152. In addition, I was referred to paragraph 1215 in the seventh edition of Cross on Evidence. I thought there was some substance in these submissions but only to the extent of the material covered in the statements of the witnesses that had been tendered.
As far as Ms Blackburn was concerned I think she is entitled to the benefit of an adverse inference against the first defendant but only to the extent that their evidence would not have assisted the first defendant's case.
The first witness to give evidence on behalf of Ms Blackburn was Dr Samuels. I deal with him below.
Her first lay witness was Mr Paul Theobald. He is Ms Blackburn's partner. They have two children aged 1 and 4. They live together as a family including Ms Blackburn's daughter Norah, in Bathurst.
Mr Theobald described himself as a semi-retired builder and horse trainer. He also owns property, which he manages. One of these properties is in Bentinck Street in Bathurst. It includes the Indian restaurant where the plaintiff worked. It is to be recalled that the plaintiff alleged that he lost his job at this restaurant because of the intervention of Mr Theobald.
Although Mr Theobald grew up in the Wattle Flat area he did not know Ms Blackburn until 2005 when she engaged him to do some building work at a café she was opening in Wattle Flat. After meeting her he came to realise he had seen her before in an incident he had witnessed in about October 2003. On this occasion he and his daughter were at his stables when he saw a vehicle cut off another motor car. The driver of the first vehicle then assaulted the lady driver of the other car. He jumped over the fence to render assistance but the two vehicles drove off. He later came to know that the two drivers were Mr Withyman and Ms Blackburn. Mr Theobald described the lady in the car as bleeding and screaming. This seems to have been the episode in which the plaintiff bit Ms Blackburn on the nose.
Once the café was ready to be opened a party was held to celebrate the occasion. Mr Theobald attended together with about 60 other guests. At this stage he was still married and living at home, although I understood otherwise separate from his wife. He met Ms Diane Minato at the party and struck up a conversation with her in which he spoke to her in Italian. He said that she was drunk and following him around. He described her intent as "hitting on me". I took this phrase to refer to a less than subtle method of seduction. Ms Minato failed to score the hit but continued to pay attention to Mr Theobald. He tried to have her escorted home (to Ms Blackburn's house about a kilometre away) but she kept coming back. Three such attempts were made.
He said that Ms Minato later threatened to kill him, suggesting that the nature of the 'hit' changed from romantic to deadly.
Mr Theobald next saw Ms Minato at a New Years Eve party where she had been invited to sing. On this occasion she again became drunk and was abusive to the disc jockey. Mr Theobald escorted her outside and called Ms Blackburn to send her home.
The purpose of the evidence concerning Ms Minato was, no doubt, to found an attack on the very damaging evidence by Ms Minato against Ms Blackburn. The argument was that as a result of the interaction with Mr Theobald, Ms Minato formed a grudge, which she took out on Ms Blackburn who later formed a relationship with Mr Theobald. The concept has these difficulties:- (a) Although some of the facts about the party were put to Ms Minato (T 455.46) the detail given by Mr Theobald was not, nor was the allegation of her conduct at the New Years Eve Party.
(b) Mr Theobald said that after the café completion party, Ms Blackburn and Ms Minato kept in touch and were in contact by phone or email three or four times a week. This degree of contact is inconsistent with Ms Minato holding a grudge to the extent that she would give false evidence.
(c) Whatever feelings Ms Minato may have harboured against Mr Theobald they do not translate into such a hatred of Ms Blackburn that she would effectively volunteer to come forward and be dishonest in court. The alleged events at the two parties did not affect the reliability of Ms Minato's evidence. 237. Mr Theobald gave evidence of an event that occurred outside the office of his Bentinck Street property. He said Ms Blackburn pulled into the driveway with her horn blaring. He went out and found her distraught. The plaintiff was behind her in another car. He got out of the car. Mr Theobald asked him why he was harassing Ms Blackburn. The plaintiff looked angry and frustrated. The police were called. The plaintiff walked into the Indian restaurant. The police arrived. Ms Blackburn spoke to the police and they in turn spoke to the plaintiff. The police told Mr Theobald that as the plaintiff was working in the restaurant he was entitled to be on the premises. Mr Theobald later spoke to Mr Singh, the owner of the restaurant, and a long term tenant. He told Mr Singh what had happened and was told in return that the plaintiff came to the restaurant through the Apprenticeship Board. Mr Theobald observed to Mr Singh that their background checks were deficient.
The plaintiff, in his evidence, had suggested that he came to lose his job at the restaurant as a result of Mr Theobald making representations to Mr Singh. Mr Theobald rejected this suggestion although one can understand that Mr Singh, having been given some background, may have taken the view that he did not wish the plaintiff to remain in his employ.
Mr Theobald also gave evidence of the incident that is described in his statement to the police dated 1 December 2007 (Exhibit 2D14). Although this statement contains some obvious errors in the chronology I do not see these as affecting the credibility of Mr Theobald or the events described in the statement.
The balance of Mr Theobald's evidence generally concerned his observations of the distress that Ms Blackburn felt as a result of the assaults and breaches of AVOs by the plaintiff. He described her as being particularly security conscious and also upset by the effect of these events on her daughter, Norah. Mr Theobald said that Norah had become obsessive about security, in particular when he was not at home.
Other than perhaps in relation to the manner in which the plaintiff lost his job at the Indian restaurant, there was not a great deal in dispute about the events related by Mr Theobald. His descriptions of the distress felt by Ms Blackburn and her daughter are consistent with the fear one would expect following activity of the kind engaged in by the plaintiff. There was an air of defensiveness about the manner in which Mr Theobald gave evidence. He seemed suspicious of the questions asked in cross examination on behalf of the plaintiff but this is perhaps understandable having regard to his status as Ms Blackburn's partner. I have no reason not to accept Mr Theobald's evidence.
Ms Blackburn called her father, Mr Neal Blackburn, to give evidence. He is almost 85 years of age now and is hard of hearing. His background is set out in Annexure B to his affidavit sworn on 18 September 2008 (Exhibit 2D15). I was immediately impressed by Mr Blackburn. He gave his evidence in a gentlemanly fashion displaying a desire to co-operate despite the obvious tendency to the bias that his parental status would have generated.
In Annexure A to his affidavit he states that from March to October 2003 he lived with his daughter and granddaughter at Wattle Flat. He did so, at least in part, because of an agreement that had been reached concerning the separation of Ms Blackburn from her former partner, Mr Wells.
It emerged when Mr Blackburn was cross examined that there were no formal orders requiring him to reside with Ms Blackburn but rather he saw it as part of the 'deal' which had been struck with Ms Blackburn's former partner in settlement of their de facto dispute.
The orders made in the Family Court came into evidence as Exhibit 1D14. The relevant section is contained in the notation following the orders. More relevant, however, is the date of the order, 6 May 2003, which suggests that Mr Blackburn's practice of always being available may not have been in place during March and April 2003. It is to be recalled that the first sexual act is alleged to have occurred in March 2003.
It was repeatedly put to Mr Blackburn that he was mistaken about being with his daughter for the whole period between March and mid October 2003. He accepted that he was away in Queensland for two weeks and that there may have been periods when his daughter herself travelled. As an example he was taken to her trip to Wagga Wagga in October 2003. Despite a vigorous cross examination, in which the topic was returned to on a number of occasions, Mr Blackburn held to his evidence that, other than the periods he conceded, he had always resided in the same house as his daughter. There was obviously a degree of confusion about some of the dates and it seems, at least on the evening before 12 October, when the police were called to Wattle Flat, that Mr Blackburn had probably stayed in premises in Brilliant Street, Bathurst. This was a property that had been rented by Mr Blackburn and his daughter to enable her to work full time at Carenne. It seems the rental period began in about August 2003.
The record of interview conducted by Mr Ray, with the plaintiff, suggests that Mr Blackburn was in Queensland at the end of March 2003 and did not return until a date in April. Mr Blackburn would not concede this possibility and certainly in a contest between Mr Blackburn and the plaintiff I have little doubt in accepting the former. In addition, the annexures to his affidavit (Exhibit 2D15) suggest that he was in Queensland in July 2003 when he attended a medical appointment. It also seems that Ms Blackburn and her daughter accompanied him and they spent some time at Hervey Bay.
A statement of Mr Wilcox dated 30 June 2005 and contained in Exhibit AB (Tab 16) was ultimately tendered against Ms Blackburn. She had asked some questions arising from this statement despite some warnings I gave her about a possible result of those questions. She also did not object to the tender of the statement, which in paragraph 5 contains these words:- "Neil would spend a significant amount of time in Queensland and away from Wattle Flat. Neil would spend more time in Queensland than Wattle Flat and at times would be away for months on end" 249. Mr Blackburn may have been unreliable in some of his recollections but he was certainly not dishonest. Time and again he went out of his way to provide a fair response to the questions he was being asked. Some of these responses took a circular path but nevertheless seemed to me to be an attempt to give as complete an answer as he thought possible.
(b) In his oral evidence the plaintiff agreed that Mr Blackburn was present (T 831.31).
(c) If the match was at the beginning of the evening when sexual intercourse occurred then it is unlikely that Ms Blackburn would have been reluctant to talk to the plaintiff, unless her father was present.
(d) Another possibility is that the match at which Mr Blackburn was present occurred some time after March 2003 during a period when Ms Blackburn felt she was being harassed by the plaintiff and therefore did not wish to talk to him. 256. Mr Blackburn gave evidence about Ms Minato's behaviour at the café opening party in June 2005. He described her as "worse for alcohol" and that she became an "embarrassment". His evidence in this regard is consistent with that of Mr Theobald. He was not challenged on it.
Q. And that would have been the position in 2003 wouldn't it? A. Yes, I, I think so.
Q. And would you agree that it would be the more necessary to involve parents in cases where there were behavioural issues involved in the student in any event? A. I would hope so." (T 1690.1) 266. Ms McDiarmid agreed that a Behaviour Contract that prohibited contact with a teacher was unusual, in particular when that teacher was the student's class teacher. Ms McDiarmid was also of the view that if a contract like Exhibit N had been made then the school should have monitored its progress.
Mrs Louise Smith is a teacher at Carenne and has been for some years. She taught the plaintiff in 1999. She also gave evidence on the telephone, although over two separate days because on the first occasion she did not have the documents that Ms Blackburn wished to question her about.
Most of the questions asked of Mrs Smith, in chief, arose from document 35 in Exhibit 2D10 ("Semester one report at Carenne School 1999 by Mrs Louise Smith."). Mrs Smith did not remember a good deal of the events in 1999 and she had also, since then, had lengthy absences from the school due to maternity leave and an injured back. She did agree with Ms Blackburn that teachers at a school like Carenne needed to identify the needs of their pupils and then "take the next step" in conjunction with parents and other staff. Mrs Smith said that she had not noticed anything that would suggest a sexual relationship between the plaintiff and Ms Blackburn. She saw no inappropriate touching or other contact.
Under cross examination by the plaintiff Mrs Smith said that it was important to notify parents in the enforcement of behaviour contracts. This was to allow the parents to reinforce the students' obligations under the contract.
Under cross examination by the first defendant, Mrs Smith said that the only issue she had noticed between the plaintiff and his parents was an occasion in about 1999 when he had presented in a very upset state following an argument between his parents. She had reported the matter to Mr Roxborough but she did not remember if she had spoken to the plaintiff's parents about it.
Mrs Smith said that from time to time she saw Ms Blackburn trying to calm the plaintiff down when he was obviously in an agitated state. Mrs Smith repeated the general opinions given about teacher behaviour that had been drawn from Ms McDiarmid.
Ms Blackburn took the stand as the last witness in her case. She effectively gave her evidence in chief by the tendering of a number of documents including statements she had given to the police and, the most comprehensive, the affidavit she had relied upon in the Industrial Relations Commission (Exhibit 2D41).
I noticed an immediate change in Ms Blackburn's demeanour when she entered the witness box. She was overtly anxious. The level of confidence she had gained at the bar table quickly dissipated.
The series of documents she tendered all speak for themselves but some, I think, require special mention:- (a) Exhibit 2D26 is an affidavit and transcript of evidence of Ms Jane Booby. She was not required for cross examination. In a sense she was an equivalent of Ms Minato in that she was a close friend of Ms Blackburn. In paragraph 10 of her affidavit she says that Ms Blackburn never told her that there was a sexual relationship with the plaintiff. The question arises as to why she would have divulged this information to Ms Minato but not to Ms Booby. A possible explanation is that Ms Booby lived in Wattle Flat and was perhaps liable to pass the information on to others. She was also working at Carenne in 2003 so perhaps, it might be suggested, Ms Blackburn would have been more circumspect about what she told Ms Booby.
(b) Exhibit 2D27 is an affidavit of Mrs Dawn Richardson, Ms Blackburn's aunt. She was present at the party in Wagga Wagga. Her evidence about the sleeping arrangements and about a visit she allegedly made to Ms Blackburn a few days after the party is contradicted by the plaintiff's evidence. Mrs Richardson was not required for cross examination. Having regard to the plaintiff's accepted unreliability (unless corroborated) I accept Mrs Richardson.
(c) Exhibits 2D32 to 2D37 describe the circumstances surrounding the plaintiff's criminal conduct in relation to Ms Blackburn. Suffice to say, I think, that they demonstrate the fear and apprehension that Ms Blackburn suffered as a result of this activity.
(d) Exhibit 2D40 is a letter written by the plaintiff to Ms Blackburn, apparently in August 2003. The letter has a distinct air of having been adapted from another source. It even includes a direction to "send this to all your friends" (page 5). On the last page it says "just remember this email" . The letter is obviously not an email. It is difficult to know what to make of this letter, although one thing does stand out: despite all the declarations of love on the part of the plaintiff there is no indication that this love has been reciprocated. To the contrary, on page 3, the letter states: "* What would you do if you loved someone more than ever and you couldn't have them?" In addition, there is no reference to any sexual activity. The letter almost suggests a love from afar: "I look up to you respect you, and truly cherish you" (page 5). This is reinforced by the final words: "Somebody out there cares about you and … always will I love you!!!!".
(e) The plaintiff was in fact called in reply to give evidence about Exhibit 2D40. His evidence was entirely unsatisfactory. He said that the letter had been prepared from notes his sister, Mauricia, had written on pieces of paper which he had copied. He had told her that he had broken up with his girlfriend and wished to write to her. The contents of the letter, for example references to emails, simply cannot sit with his explanation. I also find it difficult to believe that he had no knowledge about the workings of a computer and I found incredible his answer to my question about the passage I have quoted from page 3. I also have difficulty with his alleged version of her response to the letter which was as follows:-
"Q. What happened after? I'm sorry Mr Withyman. What happened after you gave the letter to Ms Blackburn? A. She read it and she rang me up and told me to come out 'cause she wanted to fuck my brains out, and she's sorry." (T 2119.50) I simply do not accept any of the plaintiff's evidence concerning Exhibit 2D40.
(f) Exhibit 2D42 is an affidavit by Ms Blackburn's general practitioner and refers to notes of the practice (also part of the exhibit) for the period between March and October 2003. The affidavit contradicts the plaintiff's statement about Ms Blackburn aborting pregnancies. I bear in mind, of course, that the procedures could have been carried out elsewhere.
(h) Exhibit 2D44 is one of a number of documents tendered by Ms Blackburn which, certainly on first impression, do not assist her case. The document does, however, say this: "It is apparent that Ms Blackburn's relationship with David is such that she is able to manage his reportedly violent behaviour where other teachers may have failed." This is consistent with her allegation of going out of her way to assist a very troubled young man.
(j) Exhibit 2D46 contains an email from Jane Thorpe to Peter Reardon on 18 October 2007. This document unquestionably does not assist Ms Blackburn except perhaps to the degree that there is some consistency in the allegation that the plaintiff has made up the relationship.
(k) Exhibit 2D47 contains running sheets for the Child Protection Investigation Directorate enquiry into the allegations. I think the most important of the running sheets is that for 21 October 2003, in particular to the extent that it refers to the information available to Mr Terry Neal and to the apparent failure of the school to consequently monitor the contact that was occurring between the plaintiff and Ms Blackburn. The document refers to a conversation with Mr Neal and includes this: "He said that David was 'devious' and 'vindictive'. David acts as though he has a relationship with Ms Blackburn but that Ms Blackburn ignores him." This observation by Mr Neal was obviously about matters he saw at school. In addition the notes refer to matters reported by Ms Blackburn to Mr Neal. The document continues: "He said that strategies were introduced to limit the opportunities that David would have to interact with Ms Blackburn. He said that the only times where this could occur were 9-9.15 each day before classes started; 2.30-3 at the end of each day and Wednesday between 9-12." The running sheet concludes with this: "She was polite and professional towards David but she would not allow him to talk to her for any length of time. He said that regardless of this David was insistent." .
(l) I would like to say a little more about Exhibit 2D47. The documents clearly suggest a concern was held by the school about the plaintiff's behaviour. Despite this Ms Blackburn was allowed to have contact with the plaintiff within a short time after the Behaviour Contract. This extended to directing her to take him to and from work placements. On some occasions he was alone in the car with her. 282. Both the documents and oral evidence suggest that the plaintiff's parents were not consulted about problems their son was having (or causing) or were not told about disciplinary measures. The plaintiff made much of this fact in submissions relying on the omissions as evidence of a failure to properly care for the plaintiff. The 'expert' teachers, like Ms McDiarmid, all spoke of the need to keep parents 'in the loop'. I was initially attracted by this submission but on reflection do not think it carries its prima facie force. This is for two reasons: (a) There is a theme through the evidence of the plaintiff having a difficult relationship with his parents and an overriding desire, on the school's part, to protect the plaintiff from the consequences of reporting matters to his parents. I cannot conclude that his parents, in particular his father, did abuse him, but I can take into account the perception held at the school that it may not have been in the plaintiff's interests for disciplinary matters to be told to his parents.
(b) The school was apparently staffed, at senior level at least, by very well regarded educators. The plaintiff accepts that attending the school was to his benefit. These educators, as suggested by Ms McDiarmid, had a discretion to inform parents of matters in the interests of the pupil. One can well understand Mr Roxborough coming to the view that it would have been counter-productive to involve Mr and Mrs Withyman in the Behaviour Contract process in the intent to obtain compliance from the plaintiff. This sentiment is evident from this passage in Ms McDiarmid's evidence: "Q. If you regard the behaviour contract as a management tool for the protection of Ms Blackburn, and if David refused to sign the agreement, sorry, but said that he would behave himself so long as Mr Roxborough did not advise his parents, with a clear implication that that advice would be getting David into some serious trouble, that called for - do you agree that that called for, if that were the case, fine judgment on Mr Roxborough's part in managing David? A. I concede that that would be a strategy that could be employed by, by any school in the management of such a student. Q. Yes. And again, would you defer to Mr Roxborough's judgment as an expert in children with conduct disorders and special needs, such as David, that this would be an appropriate way to deal with it? A. In this particular case, yes." (T1704.19) 283. Ms Blackburn's cross examination was characterised by her holding firm in her denial of any sexual activity but at the same time being willing to make concessions, even if only with the benefit of hindsight, that her actions in dealing with the plaintiff may not have been appropriate.
(b) Although the plaintiff never signed the document he did agree to its terms. The evidence of Ms Blackburn, who in fact signed the document, was that within days the agreement was effectively abandoned. Within a week she had been directed to drive the plaintiff to work placements and to conduct the cooking class in which he was a student. As I understood her, she said that the practice was that if the problem leading to the contract was overcome then it was no longer needed. She said that the plaintiff had become compliant and therefore the contract had served its purpose. I find it difficult to accept, that following such a clear statement of the need for action, that the chosen method should be discarded so soon. The contract was intended for her protection.
(c) While on the one hand the abandoning of the contract tends to favour a conclusion that there was a relationship (at this stage not sexual) between Ms Blackburn and the plaintiff, on the other hand one wonders how the concerns expressed by Ms Blackburn translated within a matter of two weeks into a seduction by her of the student. In other words, there is an element of 'it does not make sense' for Ms Blackburn to go from the person who wrote the letter to the Principal to the person making love to the student within about two weeks.
(d) There were many phone calls between the plaintiff and Ms Blackburn. Some of them were very long. I thought Ms Blackburn consistently did not deal with the evidence about these phone calls very well. In particular, there were a series of calls from her home number, in Wattle Flat, to her mobile number on the night of 10 October 2003 extending into the following morning. Ms Blackburn was visiting Ms Minato in Canberra. She agreed that she had received the phone calls from the plaintiff but said she had not realised that they were being made from her own home. She said her phone would have shown the number on its screen but she had not paid any attention to it. I would accept this for perhaps one or two of the calls but I find it very difficult to accept for all of them.
(e) In addition, at 1.37am on 11 October, a call was made from Ms Blackburn's mobile to her home number in Wattle Flat. Theoretically she may have made this call by pressing a missed call button but one would have thought she would have noticed she was calling her own home number. I do not accept Ms Blackburn's evidence that she did not know the plaintiff was at her home.
(f) Perhaps the most concerning evidence arising from the telephone call log (Exhibit 1D15) arose from the trip to Wagga Wagga. Ms Blackburn's case, in short, was that on the morning of her trip to Wagga Wagga she intended to return on the same day. This was despite the fact that her cousin was having a 30 th birthday party in the evening. She said that at about 7.30am the plaintiff appeared unannounced at her home and she ultimately agreed to drop him in Peel. She changed her mind, however, because she thought it "might be a good opportunity to sort a few things out about our relationship" (Exhibit 2D41, paragraph 132). In her evidence Ms Blackburn said that the latest she would have left Wattle Flat was 10am. The first problem is the unlikelihood of Ms Blackburn travelling to Wagga Wagga with the intention of returning the same day notwithstanding the birthday party in the evening. The plaintiff's version was that Ms Blackburn picked him up from his home. The telephone records do not support Ms Blackburn. At page 62 (of Exhibit 1D15) two calls are recorded from the plaintiff's home to Ms Blackburn's home. The first is very short (11 seconds) and occurred at 7.47am. More important is the second, which occurred at 10.45am and lasted some 43 seconds. There is no evidence to suggest that any other person at the Withyman residence made these calls.
(g) There is one point I think should be made in Ms Blackburn's favour arising from Exhibit 1D15. A number of the calls are very short and repetitive. For example, there are a series of calls on page 53 of the Exhibit from the plaintiff's home number to Ms Blackburn's mobile number. Some of these calls are very short. There was no evidence called to explain the records and what might occur, for example, if a call was answered and hung up immediately. It is also obvious from page 22 that some of these calls were diverted to Message Bank. Caution must therefore be taken in counting the number of calls made and using the total against Ms Blackburn.
(h) Ms Blackburn said there were a number of calls from the plaintiff in the months following the Behaviour Contract. The telephone records are in Exhibit 1D15. In a number of these she said he expressed suicidal thoughts. However, it was only on 17 July that there was an entry in her diary about such a call. Although this was a business diary there is nevertheless a record on this date (Exhibit 2D53). I find it very surprising that if Ms Blackburn received a number of distress calls from him that she did not take more firm action, or make a better record than simply talking to Mr Neal about them in an informal manner.
(i) Ms Blackburn conceded that the telephone calls between her and the plaintiff had crossed the boundaries of the pupil/teacher relationship.
(j) Ms Blackburn was taken to the conversation she had with Ms Mahoney in the car. She denied the conversation despite the 'advice' that I had given her at T 900.31. As I have already said she gave a different version of the conversation that did not include the use of the word "relationship" .
(k) In relation to Exhibit 2D40, Ms Blackburn said she was surprised by the effort and execution that were evident in the letter. She was not, however, surprised by its emotional content. She saw it as the missive of a person leaving school who had strong feelings toward his teacher. She was asked to compare the language in the letter to that in Exhibit P and she agreed that there was a difference. I did however note, that in Exhibit 1D16, the plaintiff's current level of English observation included the comment: "Has excellent verbal and written story comprehension skills" . In addition, although not in evidence against Ms Blackburn, in his statement to Mr Ray the plaintiff said:-
"… just want you to know I'm never going to forget you, you know I love you to death. You know that nobody's going to fill the space of my heart that you put in, nobody is going to fill that again. I love you." (Exhibit U, page 20). There is a degree of eloquence in this passage that belies the suggestion of lingual immaturity suggested on behalf of the plaintiff.
(l) Ms Blackburn was shown Exhibit S. It is a greeting card which contains the words:-
"One week already. The rest of your life to go honey. Love A." Ms Blackburn denied that she had given this card to the plaintiff. It unquestionably came into his possession but her suggestion was that he had taken it from her home. It is, however, consistent with the plaintiff's evidence that he received it in acknowledgment of having given up smoking one week earlier. (m) Ms Blackburn suggested that the plaintiff wrote Exhibit R. She certainly denied writing the document and giving it to him. My own view is that it was probably written by the plaintiff. It certainly has the emotional content of Exhibit 2D41 and has an air of being derived from the Internet.
(n) In relation to the trip to Wagga Wagga the unacceptable part of Ms Blackburn's evidence was that she took the plaintiff with her so shortly after he had threatened her. She said she wanted "to establish boundaries" with him but the suggestion seems, as suggested by Mr Marshall, almost inconceivable. This is not to say that she necessarily had sexual intercourse on the trip to Wagga Wagga. I accept the affidavit evidence that is to the contrary (for example Exhibit 2D27). What I have difficulty with is that she took him on the trip at all against the background of the behaviour she alleges he had recently displayed. 286. The various sexual encounters and trips to Sydney and Lithgow, as alleged by the plaintiff, were put to Ms Blackburn. She denied them all. She also denied that the plaintiff drank alcohol at her house or that she had drunk with him. She said she had never watched Crocodile Dundee with him.
A number of matters referred to by the plaintiff were put to Ms Blackburn as being information which he could only have obtained from her. An example was her father visiting an old army friend on his death bed in Brisbane. I do not propose to go through each of the matters referred to. Ms Blackburn said that she was a person who spoke freely to her students. In addition, it needs to be recalled that Ms Blackburn's case is not that she had no contact with the plaintiff at all but rather that a friendship developed in which she frequently spoke to him.
A good deal of the cross examination by the first defendant centred on Ms Blackburn's allegations that she had frequent contact with her superiors about the plaintiff's dealings with her. She accepted that she had not spoken to Mr Roxborough after the Behaviour Contract and until October 2003. However, she maintained her position that she had had many conversations with Mr Neal, although not necessarily on the telephone. Especially in the absence of evidence from Mr Neal, I tend to accept Ms Blackburn because Mr Neal was not only her immediate superior but he was also a co-teacher in her class. I accept that they would have often spoken about their pupils and that although the whole of Mr Withyman's exploits may not have been made known, I accept that Ms Blackburn did give him a general description of some of the plaintiff's activities. I also bear in mind that if she was in a sexual relationship with the plaintiff, that she would have been circumspect in what she said to Mr Neal. There is an inherent contradiction in Ms Blackburn's case in that she would have been unlikely to seek assistance had she been sexually involved with the plaintiff.
The matter just raised leads well into the discussion of the last witness called by Ms Blackburn. This was Mrs Beverly Warn whose affidavit is Exhibit 2D48. Mrs Warn gave her evidence from a hospital bed and over the telephone. She is seriously ill as a result of the condition referred to in her affidavit. The importance of her evidence is to be found in the incidents she describes in paragraphs 30, 32, 36 and 40 of her affidavit.
Although the plaintiff denied assaulting Mrs Warn, he nevertheless relied on her history, as background material, to suggest that the school's failure to enforce the Behaviour Contract in March 2003 was another example of the school not dealing properly with a situation. I agree that the school did not properly support Mrs Warn. However the threat was to her, as it was to Ms Blackburn in 2003. It was the teacher not the student who was the victim and needed support.
I would like to say a little more about Mrs Warn's evidence. It is impossible to make any observations about the demeanour of a person whose evidence is given over the telephone. Notwithstanding this disadvantage I think I am able to say that I was very impressed by her and accept her evidence entirely. She seemed to me to accurately describe the plaintiff, in particular as a person whose problems were more behavioural than intellectual and that these problems were continual and serious. Her concerns about the strictness of the Withyman home is consistent with a good deal of other evidence and the shock she described following his second assault upon her is exactly what one would anticipate by such offensive behaviour.
Significantly, there was absolutely no challenge to Mrs Warn's evidence about her reporting to Mr Roxborough and her discussions with him.
Notably she said that the plaintiff could be quite capable if he wanted to be and if he was made to "feel important" he was in his element.
The problems encountered by Mrs Warn with the plaintiff are well described in her note of her conversation with the plaintiff's mother, which is at page 467 of Exhibit 1D10. At page 490 Mrs Warn's semester 1 report for 2000 states "a programme will be implemented to teach David how to control his impulsive behaviours and anger effectively". I had the clear impression from Mrs Warn that limited success was achieved. I also note her general comments at page 494.
There were many medical reports tendered. Seven practitioners gave oral evidence. This is not a criticism because I think the views of these practitioners covered the various medical scenarios relied upon by the parties and their reports also generally summarised the bulk of the medical material.
The first of the doctors to give evidence was Dr De Saxe, a psychiatrist. The doctor commenced his evidence on 8 April 2010. It could not be completed during the day and he was unable to attend the following day due to prior commitments. Accordingly, he returned on 29 June 2010 to finish his evidence. He was then still under cross examination by the first defendant.
Dr De Saxe's report is Exhibit B. It is dated 27 July 2009 and followed an interview with the plaintiff at Long Bay Gaol on 13 June 2009. Dr De Saxe prepared his report in response to a letter of instruction dated 12 June 2009. The letter is also part of Exhibit B. The letter provides a number of assumptions for the doctor. He added two basic assumptions of his own: firstly that the history that he took from the plaintiff was a "true and accurate reflection of the matter at hand" and that the mental state examination he conducted was a "true reflection of the plaintiff's mental state at the time of examination". Both of these assumptions gave rise to significant issues that arose during the course of the doctor's evidence. The first was that the doctor maintained his opinion despite the probability that the history that he had received was not reliable. In fact the plaintiff's own evidence suggested he had lied to the doctor. Secondly, I thought there was confusion in the doctor's evidence about the limits of the mental state examination. I took it to be a finite exercise, as apparently described on page 5 of the doctor's report, yet in his evidence he appeared to include the whole of his history taking as an integral part of the mental state examination.
The following matters also concerned me:- (a) In his oral evidence the doctor said the plaintiff presented as a "rather dishevelled young man" (T 1049.9). The doctor later described the plaintiff's affect. He said this:-
"A. That was just my initial impression of Mr Withyman. He described having a depressed mood and I felt that his depressed mood was confirmed by his rather flat, depressed affect. His degree of agitation in telling me history and the urgency with which he expressed it, the content of what he spoke about included depressive thoughts about his life in general and his imprisonment in particular as well as about the relationship and how it had ended. So the content of his thoughts was of a depressive nature." (T 1050.27)
The observations about the plaintiff's presentation and affect are, in my view, directly contradicted in the doctor's report on page 5 under the heading " Mental State Examination ". Here the doctor wrote:
"Appearance: David was a tall young man dressed in standard prison clothing. He was neat and clean. Behaviour: He was able to engage with me in a pleasant manner and we were able to establish rapport. Affect: His affect was reactive and appropriate to the content of the discussion. He displayed a full range of affect from cheerfulness through to being humorous." These discrepancies were pointed out to the doctor by the plaintiff's senior counsel but did not generate any acknowledgement of error on the doctor's part; rather I thought he tried to defend both his evidence and report in a manner which weakened both of his divergent descriptions. (b) When the doctor returned to give his evidence in June a similar inconsistency arose. Ms Blackburn was cross examining the doctor about the absence from his notes (Exhibit 1D9) of some of the matters he referred to. Dr De Saxe accepted that some of these matters were important but he also added this:
"Q. Prior to his meeting with you? A. Yes. However, just let me have a look at my notes because you have to understand that he was talking quickly and trying to convey a lot of information to me. He was quite emotional at times and I couldn't write down everything which he said, so that when I say he may have told me these things, I have a slight memory perhaps, but I can't be categorical that he mentioned the noose or his interest in guns." (T 1187.35)
The Mental State Examination referred to above also contained this statement:
"Speech: The form of his speech was normal. The rate and flow were within normal limits, and while vocabulary was slightly below average, his grasp of the conversation was more than adequate."
(c) The doctor was provided with a number of documents to assist in the preparation of his report. These included the report of Dr Frukacz dated 9 December 2003 (in Exhibit 1D8). Dr Frukacz's report contains a significant history of disturbed behaviour shortly before 13 October 2003. This seems to have been ignored by Dr De Saxe in his report in which he said: "Prior to the end of the relationship with Ms Blackburn, Mr Withyman had not suffered from depression." (page 4). He later stated: "On the basis of the information available to me, I have no evidence that prior to the breakdown of the relationship with Ms Blackburn that Mr Withyman suffered from a mood disorder." (page 6).
(d) Under cross examination Dr De Saxe agreed that the matters of history taken by Dr Frukacz could be indicative of a previous mood disorder. He also, on the second occasion he gave evidence, elevated the " Antisocial personality traits " he referred to in his report, at page 6, to an Antisocial personality disorder (T 1210.27). The latter is a stronger diagnosis and much closer to the picture of the plaintiff's history painted by the defendants.
(e) The last quoted portion from Dr De Saxe's report follows this sentence: "My opinion is that Mr Withyman suffers from major depression as a consequence of the breakdown of the sexual relationship with Ms Blackburn." . The sentence about the absence of a previous mood disorder, on my reading of the report was a pre-condition to the just stated opinion. I put this to Dr De Saxe and he responded, as he was perfectly entitled to, as the wording is his own, that I was applying a "too literal" approach. The application of such an approach is an unfortunate failing of the legal mind but nevertheless it seems to me that the attribution of a medical condition to a particular cause must take into account whether or not the condition existed before the alleged cause. It is true, of course, that a pre-existing condition can lead to an aggravation. Dr De Saxe agreed this might be so. However, he would not allow of any amendment to his opinion even if there was a pre-existing history of mood disorder or depression. 306. Dr De Saxe did, however, make this important concession. This is contained in the following evidence:- "Q. The plaintiff's clinical state as observed by you in 2009 doesn't depend on the existence or otherwise of that relationship; it could be explained independently of that, couldn't it? A. Yes, it could." (T1057.21) As I understand this concession, the doctor is accepting that the plaintiff's mental state in 2009 could be a product of matters besides the relationship with Ms Blackburn. This is, of course, in direct contrast to the opinion I quoted above, namely: "my opinion is that Mr Withyman suffers from major depression as a consequence of the breakdown of the sexual relationship with Ms Blackburn." As I have already said, this was an opinion that I felt the doctor was very reluctant to give up. Yet the simple words in the cross examination that I have just quoted seem to fundamentally undermine the doctor's otherwise steadfast defence of his opinion. 307. When Dr De Saxe resumed evidence in June I thought there had been a subtle softening in the firmness of his view, in particular of the opinion quoted above. I suggested this to the doctor and he replied in this way:- "A. I have to put it this way. Based on the information available to me at the time that I met Mr Withyman as well as the information that I subsequently received there is nothing that's really changed my original view of the matter except to say that the information that has come to light for me subsequent to writing my report has simply supported the likelihood that someone like Mr Withyman might have become severely depressed and then acted out once a relationship of this nature had taken place and broken up. In other words, he was - he was quite vulnerable to becoming depressed." (T 1202.23) 308. The resumed cross examination by the first defendant concentrated on establishing that the plaintiff's pre-existing problems were as likely to have been responsible for his activities and depression after the breakup with Ms Blackburn as the effects of the breakdown. Although perhaps not in these terms I think the doctor accepted some substance in this argument but only to the extent that if the plaintiff was already suffering from a chronic depression then the depression following the breakup was an example of an episode of resumed depression rather than a first manifestation of the condition. Dr De Saxe went on to say that episodes of depression, without treatment, normally were overcome within two years. He also said that the description given by the plaintiff's mother of his current condition was consistent with a recovery from a depressive episode.
The reference to the relationship being professionally unethical is obviously correct. As to the balance of the opinion, however, the plaintiff's general anti-social behaviour, both before and after the breakdown, the reasons why he left some employment and his likelihood of sooner or later getting into trouble with the police, must be factored in to water down the conclusion even beyond the "may be" attributed by Ms Robilliard to the consequences of the relationship. 325. The end result, as far as Ms Robilliard is concerned, is that while she was an impressive witness, her views, in common with so many aspects of this case, lie prone to the unreliability of the evidence on which they are founded.
"Q. And is it consistent with not having the facility or capacity or ability given his personality dysfunction to rationalise his way through it as a perhaps normal person might? A. People who have antisocial personalities are more prone to attacking others when they're angry with them.
Q. Yes? A. They also though if it was in their interest at that point in time not to attack and maybe to attack at a time when nobody is looking have the ability to stop themselves and do it in a more convenient time. They have the ability to plan and they have the ability to understand the consequences of their actions. What they choose to do often is believe that the normal course of action that most people without antisocial personality disorder choose is not applicable to them because they feel so strongly justified because they might be more prone to projecting the blame, they're more prone to express their anger, resentment in a more vindictive way instead of sitting down and calmly saying, let's talk about this. They would be more prone to picking up that weapon and hitting the person. So, yes, I would agree in that sense but I don't think that people with antisocial personality disorder are or in his case he's got a combination of borderline traits and antisocial and I think it's a mixed personality disorder, have the incapacity to on a cognitive level to understand what they're doing or to conform their behaviour if they wished, if they wished. They may be quite strongly driven by emotions and will respond to - more prone to react in the moment. I agree with that but we're not talking about incompetence in this area." (T1270.1) 329. It was later suggested to Dr Allnutt that the assaults upon Ms Blackburn were committed during a period in which the plaintiff was still reacting to the break up and subject to the stress of it. The doctor agreed with the temporal connection but still did not go the step further to say that the plaintiff was, in essence, acting without choice. It is also worth noting that some of the breaches of AVOs occurred well after the break up.
(b) Ms Johnson described a change in Ms Blackburn's capacity to deal with the various stressors she was subjected to. She started off as a victim without recourse but later became better able to cope with the stressors.
(c) As a general statement Ms Johnson described the effect on Ms Blackburn as that which one would expect from a person who has been assaulted and stalked. She feared both for herself and her daughter but she had also achieved a level of stoicism.
(d) Although the first mention of a relationship with Mr Withyman is contained in the note for 31 August 2004, Ms Johnson said that Ms Blackburn had previously denied the sexual relationship although that may not have been recorded (T 1510.37).
(e) Ms Johnson was asked what the effect would be on her assessment of Ms Blackburn if there had been a sexual relationship with Mr Withyman but Ms Blackburn had lied about it. She replied:-
"A. That would also then be indicative of certain other aspects of their personality, in relation to how they relate to other people, what their quality of relationships is, what their - a person who would be capable of being such, so psychopathic would also show similar areas of not being able to be believed in other areas so they would also be manipulative in other areas, they would also be, they would, they would have difficulties fulfilling lots of other roles in life, like being a mother, like being a partner, like being a responsible citizen, because that would have to overflow into other areas of your life." (T 1522.26) I think it fair to say that there was no independent evidence that Ms Blackburn was manipulative, irresponsible or other than a good parent.
(f) The entry in her notes for 2 June 2009 contains this sentence:-
"Friend - gave evidence that they talked about their sexual relationships was of the opinion that Anna had been in a sexual relationship with him - incorrect . Why???" . I thought this entry important because it clearly refers to Ms Minato and suggests a shocked reaction on Ms Blackburn's part to what had been said by Ms Minato. It is, however, a little difficult to understand where this evidence was given as there does not seem to have been any court hearing in May or June of 2009.
(g) The entry for 18 June 2008 is perhaps significant in that it provides an explanation for the settlement of the Industrial Relations Commission proceedings. These proceedings had been brought by Ms Blackburn to 'clear her name' but were later discontinued. I do not have the terms of discontinuance but the inference the plaintiff would have me draw is that Ms Blackburn decided she could not successfully pursue her claim. The note for this day provides an answer, namely that her "legal representative wanted her to settle. Won't continue to represent her unless she settles" . (h) Ms Johnson provided the costs for her consultations. In summary, past consultations were at $90 per hour. Future consultations would be at $99 per hour if subsidised by, for example, the Victim's Compensation Tribunal, or $150 per hour if Ms Blackburn was seen on a private basis. Ms Johnson thought that Ms Blackburn required "follow ups over the next five years, perhaps monthly to start off with then extending out three monthly, six monthly, and perhaps then after the five years, if there are other exacerbations of the problem, then you may need a one off treatment session" (T 1496.1). 354. The documentary evidence included a number of other medical reports both predating and after October 2003. The doctors who gave evidence, in particular Dr Roberts have commented on many of them and I do not intend to list or analyse each report. Suffice to say that they form the background to the opinions of the doctors who did give evidence that the plaintiff had significant personality disorders as well as a learning disability.
The report not only contradicts the evidence of the plaintiff as to the effect on him of the break up but also contradicts the evidence of his mother who had said that he was well and happy before the incident on the night of 12 October. The plaintiff can take from the report, consistent with his case, his telling the doctor that he had been in the relationship with Ms Blackburn.
Another document of importance in Exhibit 1D8 is at page 235. This is the Emergency Department record for Bathurst Hospital. The plaintiff was taken to the Hospital by the police after the incident at Ms Blackburn's home. This document also refers to an earlier suicide attempt. The history includes reference to a girlfriend so again includes matters favourable to and against the plaintiff's case.
Was there a sexual relationship between the plaintiff and Ms Blackburn?
I have posed the question in a simple fashion but it also involves a temporal aspect, namely whether the relationship commenced while the plaintiff was a student at Carenne. This aspect also involves the plaintiff's age. He turned 18 in March 2003.
Had the plaintiff been a 'normal' student then his turning 18 would have been of greater significance. However, having regard to his mental disabilities and his enrolment in a school of the nature of Carenne I think his age is probably of little importance. The fact that he turned 18 does not overcome his obvious disabilities and vulnerabilities derived from his mental makeup. The plaintiff was in many respects a deceptive, belligerent and manipulative person. Despite this he was a student at Carenne for a reason and required the care and attention from the school that was commensurate with his disabilities.
The most direct evidence of the relationship of course comes from the plaintiff. It is far from reliable. In fact, I would go so far as to say that were I considering the matter on the strength of the plaintiff's evidence alone, including his histories and records of interview, I would not accept it as establishing a sexual relationship with Ms Blackburn.
The plaintiff accepted that he lied about certain matters, for example that his father beat him as a child. Although I think the plaintiff has probably lied about other matters I do not wish to classify him as a liar but rather as an unreliable witness. This is because I think his mental disabilities have played a significant part in dictating his grasp of what is and is not true and also have been implicit in the many fanciful statements he has made. It is almost impossible for me to distinguish fact from fiction in relation to the plaintiff's evidence. Even his father told Ms Robilliard that "his son is very prone to fantasy" (Exhibit C, page 3).
There is evidence, such as the report of Mr Ray (Exhibit AB) that supports a conclusion of the existence of a sexual relationship. This report, however, is not in evidence against Ms Blackburn. I think I should approach the question of the existence of the relationship, at least in the first instance, on the basis only of the evidence that has been admitted against Ms Blackburn. To do otherwise could potentially lead to an absurd result if I were find no sexual relationship existed on the evidence against the second defendant but such a relationship existed in the case against the first defendant. I should add here that I would in any event have placed little weight on Mr Ray's report because it is so replete with unproven assumptions and quantum leaps of reasoning.
The most pronounced rejection of the plaintiff's claim comes through the evidence of Ms Blackburn and her father. I observed Ms Blackburn not only in the witness box but also over many days at the bar table. In her role as advocate she was always courteous. Her few demonstrations of emotional behaviour were appropriate to the matters then being discussed. Her questioning, although far from displaying the attributes of a legally trained cross examiner, was usually relevant and sometimes incisive. She appeared to take the 'advice' that I sometimes gave her from the bench, as did, from time to time, other counsel involved in the case.
As far as Ms Blackburn's oral evidence was concerned she did not waiver in her denial of the relationship although there were a number of issues I felt she did not satisfactorily explain. I have dealt with these above. To emphasise the conclusion I stated above, on a straight contest between the plaintiff and Ms Blackburn I would have little hesitation in finding that the plaintiff had not proved his case.
There was, however, other evidence, both documentary and oral, which must be taken into account.
It is to be remembered that no person observed the plaintiff and Ms Blackburn in any compromising position. This is despite the relationship lasting some 6 months. The observations of Ms Mahoney in the school grounds are, without more, indicative of nothing more than a friendly, and innocent, student teacher interaction. On the other hand Ms Blackburn would presumably have wanted to keep the relationship secret and so ensured there were no public displays of affection. But if so, then why the 'relationship' comment to Ms Mahoney? The comments to Ms Minato are different because they can be seen as confidential disclosures to a good friend.
I regard the evidence of Ms Mahoney as consistent with the existence of a sexual relationship but no more.
The evidence of Constable Lloyd, and the conversations she recalled, I think fit into the category of consistent with the relationship but not proof of it. In her final submissions Ms Blackburn said that Constable Lloyd's evidence should have been excluded under Section 84 of the Evidence Act. She said that her alleged admissions had been influenced by the violent and oppressive circumstances of the events that had recently occurred or were occurring at the time. There may be some validity in her submission in respect of her comments made in the presence of the plaintiff and while an effort was being made to calm him down. I think I have allowed for this in my discussion of this evidence and in viewing it as part of the effort to placate the plaintiff. I do not think that Section 84 would have applied to the comments she had earlier made to Constable Lloyd while at her mother's house. For abundant caution, however, I have taken the view that I should not elevate Constable Lloyd's evidence above a consistency with the plaintiff's allegations. The same comment can be made about Exhibit 2D43 and of the use of the word "ex" by Dr Corbett-Jones. The Depo Provero injection in 2003 falls into the same category.
Ms Robilliard and Dr Roberts both said the detail and consistency of his allegations tended to suggest the plaintiff was telling the truth about the relationship. I have already pointed out the qualifications to these opinions. Ms Johnson, although not confronted directly with the question, seemed to accept Ms Blackburn as honest and without the characteristics that she felt would have been associated with Ms Blackburn if she was dishonest.
Mr Blackburn's evidence, as I have said above, weighs heavily in favour of his daughter. I reject any submission that Mr Blackburn was dishonest.
It is the evidence of Ms Minato (including the emails) that I think is determinative of this core issue. Although Ms Blackburn inferred that Ms Minato may have been confused about what she was told I see no room for any lack of clarity in Ms Minato's evidence. Other than the possible confusion, Ms Blackburn relied on a vague conspiracy between Ms Minato and Mr Wells and on a grudge held by Ms Minato stemming from her supposed dislike of Mr Theobald. I have already rejected these submissions (paragraphs 112 and 236, above).
In addition I thought Ms Minato gave her evidence in a clear and straightforward manner. She was, I felt, obviously troubled by having to give evidence against her former close friend but at the same time was understandably aggrieved by Ms Blackburn's request that she dishonestly misrepresent what Ms Blackburn had told her on the telephone.
I have set out the content of the telephone calls and the emails above and I can see no basis to reject their validity or their implication. The other important element in Ms Minato's evidence concerns the timing of the telephone calls. Ms Minato was overseas from the end of April to the end of May 2003. The conversation in which Ms Blackburn revealed the existence of the sexual liaison occurred before Ms Minato went abroad. Therefore, even if I discount the plaintiff's assertion that the first sexual encounter took place in March 2003, on Ms Minato's evidence it occurred before the end of April 2003 and thus squarely while the plaintiff was a student at the school. Again based on Ms Minato's evidence the relationship continued to at least September 2003 when Ms Blackburn complained of the plaintiff becoming more physical and Ms Blackburn was then fearful for the safety of herself and her daughter (T 413.28).
If I accept the evidence of Ms Minato I am still left with the contrary inferences flowing from the evidence of Mr Blackburn. As I have said, I am not prepared to make a finding that he was dishonest. How then can I reconcile his evidence with my acceptance of Ms Minato's evidence? I think the answer is as follows: as honest as Mr Blackburn was, he was clearly not reliable on dates and his recollection of periods that he may not have been in the same residence as Ms Blackburn during the night. I think he probably was present for a good deal of the time but that there were periods when he was either sleeping at the Brilliant Street property or perhaps in Queensland. I note this was the observation of Mr Wilcox whose statement is in Exhibit AB at Tab 16. This reconciliation allows for some periods when sexual intercourse may have taken place but also allows for my assessment of the plaintiff as having grossly exaggerated (probably fantasised) the detail and extent of the relationship. Dr Roberts was also of the view that the plaintiff's version was exaggerated. (See paragraph 342, above.)
The evidence of Ms Minato, I am satisfied, establishes that a sexual relationship existed between the plaintiff and Ms Blackburn, that it commenced some time before the end of April 2003 and continued until at least September 2003.
I have reached this conclusion despite what I might describe as the apparent improbability of the relationship. It defies logical reasoning to understand why a seemingly competent, compassionate and intelligent teacher such as Ms Blackburn would commence a sexual relationship with an obviously troubled and mentally impaired student such as the plaintiff. However I cannot ignore the strength of the evidence from Ms Minato, which taken with the other consistent evidence, in my view, establishes the existence of the sexual relationship. I should also add that despite my overall finding about the reliability of the plaintiff's evidence it is obviously consistent with the existence of the sexual relationship.
My finding of a sexual relationship is a finding of sexual intercourse having occurred between the plaintiff and Ms Blackburn during the period I have mentioned above. It is not a finding that goes beyond these bare facts. It is not, in particular, a finding that the details of the sexual encounters were as described by the plaintiff in his records of interview. I cannot say whether these details are correct or not. I suspect many of them are the product of the plaintiff's imagination and perhaps derived from the pornography that he had viewed. As far as the "baby" letter is concerned I also suspect that it was written by the plaintiff who constructed it from the Internet (Exhibit R).
The effect of a finding of a sexual relationship, including causation.
The first proposition I stated in paragraph 15, above, was that if a sexual relationship did commence when the plaintiff was a student then there was a breach of the duty owed to him by the second defendant. I think this is an inevitable conclusion and I did not understand Ms Blackburn to dispute this reasoning.
I discuss the duty of a teacher below (in relation to the first defendant). Suffice to say here that a teacher who seduces a pupil she has come to know at school, even if the acts of intimacy occurred outside school, must be in breach of her duty to take reasonable care for the welfare of the student, in particular a student who the teacher knew to have significant behavioural and personality deficiencies.
Turning now to the question of causation and in particular the extent to which events that followed the break-up were caused by it and are compensable. The plaintiff says he should be compensated for much more than the emotional suffering he endured following the relationship. He says his being in gaol, including the emotional and economic consequences (both past and future), are a product of the defendants' breach of duty and he should receive consequent damages.
The first question is whether the Civil Liability Act 2002 ("the CLA") is applicable. If it is, Section 5D will be relevant to causation.
The plaintiff's submission is that Ms Blackburn's breach of duty was an intentional tort and thus exempted from most of the CLA. He also submits that if the first defendant is vicariously liable for Ms Blackburn's tort then the first defendant also loses the benefit of the CLA. Section 3B, as relevant, states the damages provisions of the Act do not apply to: "(a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person…." 385. I think the actions of Ms Blackburn were intentional and amounted to "sexual misconduct." This means that, all other requirements being satisfied, the plaintiff's damages against Ms Blackburn should be assessed at Common Law and he is eligible for exemplary and aggravated damages. I should add here that, for purposes of Ms Blackburn's cross claim, the assaults upon her and the breaches of AVOs are clearly intentional torts falling within the Section 3B exemption. Therefore any damages to which she is entitled are to be assessed at Common Law. She has also claimed exemplary and aggravated damages.
(b) The assaults were not reactive in a temporal sense. It could not be said they were a product of anything said or done by Ms Blackburn producing an immediate response. 392. As I have said above the plaintiff submits that I should apply the 'but for' test. If my above comments are wrong I still think the test is inapplicable to the circumstances here. This view arises from the plaintiff's pleas of guilty and conviction for the various offences against Ms Blackburn. This was the view taken by Samuels JA in SRA of NSW v Wiegold (1991) 25 NSWLR 500. At page 514 his Honour said:- "If the plaintiff has been convicted and sentenced for a crime, it means that the criminal law has taken him to be responsible for his actions, and has imposed an appropriate penalty. He or she should therefore bear the consequences of the punishment, both direct and indirect. If the law of negligence were to say, in effect, that the offender was not responsible for his actions and should be compensated by the tortfeasor, it would set the determination of the criminal court at nought. It would generate the sort of clash between civil and criminal law that is apt to bring the law into disrepute. Hence, the application of the simple "but for" test to determine causation would be singularly inappropriate in this case. In all the circumstances, it would be quite unreal to find that the appellant caused the respondent to engage in criminal conduct." Was there a breach of duty by the first defendant (other than vicariously)?
"In the absence of a special arrangement to the contrary, it is, I think, the necessary inference of fact from the acceptance of a child as a pupil by a school authority, whether the authority be a Government or a corporation or an individual, that the school authority undertakes not only to employ proper staff but to give the child reasonable care."
The primary duty of the school authority is, so to speak, antecedent to its employment of staff. The existence and nature of that duty do not depend upon the staffing arrangements which it makes; nor is the duty discharged or extinguished by making arrangements for the staffing of the school. Though the primary duty, so far as it requires supervision of the pupils, will ordinarily fall to be discharged by the teachers at a school, a school authority's liability for damage caused by a failure to provide supervision is founded on the school authority's failure to discharge a duty which it assumed when the child was enrolled and which is sustained by the continued acceptance of the child as a pupil. Of course, a teacher may be under a like duty to the child, but the teacher's duty is not determinative of the duty of the school authority." 395. In Richards v State of Victoria [1969] VR 136, Winneke CJ set out the duty of a school and teacher. I particularly note his comments about the age of a pupil and the need to protect a pupil against himself. The plaintiff here may have been 18, but his maturity far from reflected this milestone: "We are of opinion that it is now clearly established by authority that in general a schoolmaster owes to each of his pupils whilst under his control and supervision a duty to take reasonable care for the safety of the pupil. It is not, of course, a duty of insurance against harm but a duty to take reasonable care to avoid harm being suffered. As was said by Kitto, J, in Ramsay v Larsen (1964) 111 CLR 16, at p. 27; [1964] ALR 1121: "The breach of duty which the plaintiff alleges is a failure to take such precautions for his safety on the occasion in question as a reasonable parent would have taken in the circumstances. It is indisputable that in general a schoolmaster owes his pupil a duty of that order." The reason underlying the imposition of the duty would appear to be the need of a child of immature age for protection against the conduct of others, or indeed of himself, which may cause him injury coupled with the fact that, during school hours the child is beyond the control and protection of his parent and is placed under the control of the schoolmaster who is in a position to exercise authority over him and afford him, in the exercise of reasonable care, protection from injury " (Page 138). 396. The plaintiff was obviously a pupil accepted by the school until September 2003. Besides this basic fact there is an added element. Carenne was a special school and the pupils had special requirements. The obligation of the school must have included consideration of these requirements, which in the case of the plaintiff would have extended to consideration of his personality problems and vulnerability to influence from older people.
"David continues to talk me about his life outside of school and seeks my advice at times. As do many of the students in my care. At school, I have asked David to be aware that I am his teacher not his friend. I choose to mostly ignore minor attention seeking behaviour but react immediately to behaviour, which endangers other students."
"As a professional I am aware that over-familiarity is a problem for teachers who have not been able to exercise classroom management skills and control over the students." 399. According to Ms Thorpe (Exhibit AC) it was "inconceivable" that "Ms Blackburn was not making any effort to enforce the Behaviour Management Contract". This may be so but it does not mean that the school was thereby freed of its part in ensuring compliance with the contract.
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), …" The risk of harm here is the risk of Ms Blackburn beginning a sexual relationship with the plaintiff carrying with it the consequences to the plaintiff. That such a relationship could have harmful consequences is beyond doubt. In essence therefore, what must have been foreseeable was the "moment of madness" or the risk, including the harm associated with it, occurring. 405. The plaintiff submitted that Ms Blackburn's actions were reasonably foreseeable. This submission started on a foundation of matters that were known to the school about the plaintiff and Ms Blackburn. It was said that the school knew these things about the plaintiff:- (a) By reason of his personality problems and mental difficulties, he was vulnerable.
(b) He was obviously attached to Ms Blackburn. He had demonstrated this the year before in coming to her classroom and it was obvious from Ms Blackburn's statement of 11 March 2003 given to Mr Roxborough (Exhibit AB, Tab 1).
(c) The plaintiff had demonstrated a lack of response to earlier warnings he had received from Ms Churches and Mr Roxborough.
(d) The plaintiff had a history of inappropriate sexual behaviour, such as his assault upon Mrs Warn.
(e) The plaintiff had a history with Ms Blackburn. This included visits to her house, discussion of personal matters and inappropriate touching.
In relation to Ms Blackburn the school knew the following things:- (a) She had a propensity for over familiarity in her teaching methodology.
(b) She was gullible or naïve in her teaching approach.
(c) She had required counselling about the home visits from the plaintiff.
(d) She was obstinate. Ms Churches said that she did not take well to being told what to do.
(e) She had ignored Mr Perisce's admonition to maintain boundaries.
(g) She was single. 406. In addition, the plaintiff was almost 18 and Ms Blackburn was 29. It was submitted that the school knew that the plaintiff considered himself as "God's gift to women". Ms Blackburn, it was said, was an attractive woman, suggesting I understood, that she might desire male company. On this background the school knew that from time to time Ms Blackburn and the plaintiff would be alone. Such a circumstance included her transporting him to work placements.
The plaintiff submitted that the school, having the knowledge I have just detailed, should have reasonably foreseen the risk that Ms Blackburn and the plaintiff would enter a sexual relationship. Such relationships, it was submitted, were not unknown to the Department of Education because they had been specifically banned by the Code of Conduct (Exhibit M). For purposes of the argument I will assume the school had knowledge of all the matters I have just listed.
In addition, it was submitted that Mr Roxborough envisaged the danger because of the terms of the contract that he drafted. The contract not only required Ms Blackburn's signature but also required her not to have contact with the plaintiff. I disagree with this interpretation of the document. In my view the terms of the contract are squarely directed at prohibitions placed on the plaintiff. They are prohibitions to keep the plaintiff away from Ms Blackburn. Other than to enforce this purpose the contract reveals no intent to keep Ms Blackburn away from the plaintiff. Her signature, like that of the Principal and Assistant Principal, in my view, does not signify an acceptance of the terms but is rather a statement of formality to impress the seriousness of the document upon the plaintiff. I note here that although the contract tendered into evidence does not contain Ms Blackburn's signature it was accepted by her and by the first defendant that she had signed the original document.
In my opinion, it was not reasonably foreseeable that there would be such a dramatic change in circumstance that would include a risk of a sexual relationship prompted by Ms Blackburn. I agree with Mr Marshall's description that Ms Blackburn must have acted in a moment of madness. It is that very accurate description, however, which I think blunts the plaintiff's case. I also note that this description is consistent with Senior Constable Lloyd's recollection of Ms Blackburn saying: "…but it just happened." (T950.26).
If one looks at the description of events given by Ms Blackburn in her affidavit (Exhibit 2D41) from paragraphs 71 to 76 inclusive, which includes Ms Blackburn telephoning the plaintiff's father, there is an overwhelming perception of a need to protect Ms Blackburn. There is absolutely no alert for the safety of the plaintiff. Requiring Ms Blackburn to return to the classroom and to transport the plaintiff to work placements could be seen as almost reckless if the plaintiff had then assaulted her. The evident and foreseeable risk is from the plaintiff, not from Ms Blackburn.
The plaintiff submits that the failure to monitor the contact between the plaintiff and Ms Blackburn allowed a situation to be created in which Ms Blackburn was able to commence the sexual relationship. It is said that had the school maintained the ban on contact then the relationship would not have started. The school, however, was acting to protect Ms Blackburn. Further inappropriate behaviour by the plaintiff was unquestionably foreseeable. But the school did not know of the telephone calls between the plaintiff and Ms Blackburn on 17, 19, 21, 24, 26 and 28 March (Exhibit 1D15). The school did not know, nor could it have been suspicious of Ms Blackburn's motives before the football game after which the first act of intercourse took place.
I have agreed with Mr Marshall's description of the act of madness because it is the only explanation I can find for Ms Blackburn, a competent, intelligent teacher, taking the plaintiff home and having sex with him. It is an action so out of the expected as to merit this description. But, to repeat myself, it was an act so unexpected and so 'mad' as to be not reasonably foreseeable either as an act itself or as a risk of it occurring.
It was also an act of such unexpected 'madness' that a reasonable person would not have taken precautions to prevent it. I would finally add this: Ms Blackburn has received some glowing references through various witnesses in the case. She was regarded as a good teacher of high integrity. The plaintiff, in March 2003, was a student with a history of inappropriate behaviour. It would have been reasonably foreseeable that this behaviour would continue. It would not have been reasonably foreseeable that Ms Blackburn, so soon after expressing her concerns in her statement to Mr Roxborough on 11 March 2003, or in fact at all, would have so radically cast aside her integrity and switched from victim to predator.
I have thus far concentrated on the foreseeability of the moment of madness. I do not see any distinction between my analysis of the foreseeability of this event and the plaintiff's assertion that the relationship should have been observed while it was occurring. This is because: (a) Once the relationship was started it was concealed by the plaintiff and Ms Blackburn. One of the unusual elements in this case is that there is absolutely no evidence of any act of intimacy, even of a minor nature, being observed by any person between March and October 2003.
(b) It is all very well to say the Behaviour Contract should have continued to be monitored, or enforced, but this would have only been for the protection of Ms Blackburn, not the plaintiff. Once the relationship was 'happening' the plaintiff's behaviour was appropriate, no doubt because he was in happy in his new circumstance. There was no cause for the school to have been concerned. To the contrary, his improved behaviour would have signalled the success of the tactics thus far.
(c) The same problem with foreseeability arises, as with the moment of madness, because it was equally reasonably unforeseeable that a sexual relationship would have been occurring necessitating precautions to prevent it. Was the first defendant vicariously liable for the actions of Ms Blackburn?
Although there is unquestionably a non-delegable duty owed by a school to the pupils that does not assist this plaintiff because (in the scenario I am now dealing with) there has been no fault on the part of the school. In addition Section 5Q of the CLA requires an allegation of a breach of a non-delegable duty to be treated as a breach of a vicarious duty.
For purposes of examining the possible vicarious liability of the school, and perhaps generally, Ms Blackburn's actions must, I think, be regarded as sexual abuse. The fact that the plaintiff was such a willing participant does not prevent this conclusion in the light of his immaturity, vulnerabilities and presence in a school for children with special needs. The Chief Justice in New South Wales v Lepore (2003) 212 CLR 511 did contemplate a circumstance where there might be vicarious liability:- "67. It cannot be said that the risk of sexual abuse ought to be regarded as an incident of the conduct of most schools, or that the ordinary responsibilities of teachers are such that sexual assaults on pupils would normally be regarded as conduct (albeit serious misconduct) within the scope of employment. However, there are some circumstances in which teachers, or persons associated with school children, have responsibilities of a kind that involve an undertaking of personal protection, and a relationship of such power and intimacy, that sexual abuse may properly be regarded as sufficiently connected with their duties to give rise to vicarious liability in their employers."
Although a teacher at Carenne might have been called on to perform certain acts approaching intimacy with a student, they would have been restricted to students with particular physical or mental disabilities and not to a student like the plaintiff whose disabilities did not require such conduct. I do not think that the responsibilities of Ms Blackburn as the plaintiff's teacher were such as to create circumstances of the type described by the Chief Justice and which might give rise to a vicarious responsibility. 417. It is trite to say that the school was not vicariously liable for Ms Blackburn conducting a sexual relationship with the plaintiff because this activity was outside the scope of her employment.
(1) A court is not to award damages in respect of liability to which this Part applies if the court is satisfied that: (a) the death of, or the injury or damage to, the person that is the subject of the proceedings occurred at the time of, or following, conduct of that person that, on the balance of probabilities, constitutes a serious offence, and
(b) that conduct contributed materially to the death, injury or damage or to the risk of death, injury or damage.
(2) This section does not apply to an award of damages against a defendant if the conduct of the defendant that caused the death, injury or damage concerned constitutes an offence (whether or not a serious offence).
Note . Sections 52 and 53 can apply to prevent or limit recovery of damages even though the defendant's conduct constitutes an offence.
(3) A serious offence is an offence punishable by imprisonment for 6 months or more.
(4) This section does not affect the operation of the Felons (Civil Proceedings) Act 1981 .
(5) This section operates whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned." 421. The first defendant's reasoning went as follows: When the plaintiff left school his behaviour deteriorated. After Ms Minato visited Ms Blackburn the latter travelled to Canberra to spend some time with her friend. While she was in Canberra the plaintiff broke into her house and committed certain offences. He became upset that she did not return as he had expected. When she did come back the plaintiff assaulted Ms Blackburn. In doing so, he committed "serious offences". The commission of the offences led Ms Blackburn to terminate the relationship. This in turn led to the plaintiff's distress and decline into the depression which is the injury at the core of his damages claim. Accordingly, applying Section 54, the injury that is the subject of the proceedings occurred following the plaintiff's commission of the serious offences.
(b) The plaintiff can recover damages from the first defendant (assuming liability) and Ms Blackburn arising from the relationship, but in particular its ending. These damages are to be assessed against the first defendant under the CLA and against Ms Blackburn at Common Law.
(c) Ms Blackburn cannot recover damages from the plaintiff arising from her dismissal from the school. This loss was caused by her misconduct.
(d) Subject to a point I will raise below (in paragraph 443), Ms Blackburn can recover damages, in her cross claim, arising from the assaults upon her and the effects of breaches of the AVOs. These damages are to be assessed at 'Common Law' because they arise from intentional torts committed by the plaintiff (CLA, Section 3B).
(e) If liable, the first defendant could not be liable for any aggravated or exemplary damages (CLA, Section 21).
(f) Ms Blackburn may be liable for any aggravated and, or exemplary damages. The plaintiff's damages
(b) I cannot give the plaintiff damages for being happy. I can, however, give him damages for the destruction of his happiness because this was a result of the ending of a relationship that should never have occurred.
(c) The plaintiff's damages are of an emotional or psychological nature. Damages of this type, while dependent on medical opinion, are also usually dependant on the suffering described by the plaintiff. The difficulty for me is that I generally do not accept him. I do, however, accept that he was extremely distressed, as evidenced by his psychiatric treatment including hospital admission.
(d) Adding to the problem just mentioned is that I also do not accept many aspects of the main 'before and after' witness, Mrs Withyman. I think she downplayed the plaintiff's pre-break up condition. Because it is against the plaintiff's interest, I accept her evidence that the plaintiff has returned to his old self. To use her words: "He has now become that happy, jovial David" (T 169.25). I accept in making this observation that there is a degree of illogicality inherent in his old self being happy, because I have not accepted Mrs Withyman's assessment of his pre-break up condition.
(e) The opinions of the doctors must also be viewed against a background that the histories they received may have contained large portions of unreliable material. 426. Despite the points I have just made I think a view that was consistent through the oral evidence of the medical practitioners was that the break up would have had a devastating effect on the plaintiff. The range of views extend from major depression (Dr De Saxe) to manifestations of his personality deficiencies through mood swings including a decline into deep emotional upset. I accept that he was extremely distressed as evidenced by his need for psychiatric treatment including institutional admissions and a continuing need for antidepressant medication.
I think a lot of the plaintiff's allegations are the product of a fantasy world that he created, but not necessarily as an exercise in dishonest story telling. In other words, I think that by the time of the break up he believed he had a long term future with Ms Blackburn that was shattered when she ended the relationship. His dream became a nightmare and he sunk to depths of despair from which he has only recently returned.
Ms Blackburn's sexual adventure (as described to Ms Minato) became in the plaintiff's mind the beginning of a long journey of lifetime happiness. This misapprehension on the plaintiff's part was no doubt engendered by the failings of his personality and his immaturity both of which contributed to his embracing the unreal and then suffering the shock of reality.
I find it very difficult to assess damages to reflect the plaintiff's mental anguish over a period of some seven years. I am also mindful of my decision that the damages should not include compensation for him being in gaol and being otherwise dealt with by the justice system. Spending time behind bars would no doubt have added to his psychological distress.
The figure that I have determined, at Common Law, is $75,000.00. Because the plaintiff has substantially recovered I think he is entitled to interest at 2%, on $60,000.00, for 7.3 years. This is $8,760.00.
If the first defendant was liable, Section 16 of the CLA sets out the method for assessment of non-economic loss. In my view the appropriate percentage of a most extreme case is 20%. This equates to $16,500.00 after the necessary deduction. The plaintiff would not be entitled to interest on this amount.
The claim for out of pocket expenses is set out in Exhibit AE. There is no claim for expenses while the plaintiff was in prison. The claim mostly relates to antidepressant medication and the costs of medical practitioners consulted by the plaintiff. The claim appears to me to be reasonable and I allow the full sum of $933.65. The plaintiff is still taking antidepressant medication and probably will need to do so for a few more years. I allow $1,000.00 for future medication, taking into account that some of his current state may be due to his time in prison.
The plaintiff has a claim for economic loss which in my view must fail, for these reasons:- (a) The majority of the time lost was due to the plaintiff being in prison.
(b) The plaintiff's personality was such that he would have had difficulty maintaining employment in any event. Although his severe upset may well have affected his employment I cannot attribute an absence of employment to the break down.
(c) With the possible exception of the Indian restaurant job, his employment was usually terminated following a clash consistent with his pre-existing personality disorder and inability to control his emotions. 434. The plaintiff has a claim for aggravated and exemplary damages against Ms Blackburn. She was the plaintiff's teacher, a position of considerable responsibility. In addition, as I have often emphasised above, the plaintiff's personal circumstances must be taken into account. Ms Blackburn took advantage, albeit with the plaintiff's enthusiastic, but markedly immature, consent to embark on a sexual escapade that, from her point of view, could never have been a long-term commitment. An end disastrous to the plaintiff was inevitable.
"In cases where the same circumstances increase the hurt to the plaintiff and also make it desirable for a court to mark its disapprobation of that conduct, the court may choose to award one sum which represents both heads of damages and no element more than once." (paragraph 35). 436. I think this is a case where one sum is appropriate to include both heads of damages and I think this sum should be $20,000. This sum reflects an indication of the wrongfulness of the conduct (attracting exemplary damages) and the resulting need for some extra damage to reflect the harm to the plaintiff (aggravated damages). Interest on these damages at 10% for 7.3 years is $14,600.
The following table is a summary of the damages I have assessed. The first defendant is included to show the damages I would have awarded against it if I had found in the plaintiff's favour:-
First Defendant Second Defendant Non-economic loss / general damages $16,500.00 $75,000.00 Interest 0 $8,760.00 Out of pocket expenses $933.65 $933.65 Future medication $1,000.00 $1,000.00 Aggravated and exemplary damages 0 $20,000.00 Interest 0 $14,600.00 Total $18,433.65 $120,293.65
The first defendant's Cross Claim against Ms Blackburn
My finding for the first defendant against the plaintiff means this cross claim falls away. The following comments are made in case this finding is wrong.
The first defendant's Cross Claim against the second defendant is essentially a claim for indemnity or contribution toward any damages that the first defendant is required to pay to the plaintiff. The cross claim alleges, in summary, that Ms Blackburn was in breach of her obligations as a teacher and she should have known that her actions might cause harm to the plaintiff.
I would have assessed Ms Blackburn's contribution at 50%. Although she was the main actor in the wrongs to the plaintiff, the school would have been equally liable for allowing the creation of the environment in which Ms Blackburn was able to begin and maintain the relationship with the plaintiff.
Accordingly, there would have been a verdict on the first defendant's cross claim against the second defendant in the sum of $9,216.82.
The second defendant's Cross Claim against the plaintiff and damages
It follows from what I have said above that this cross claim must succeed based on the intentional assaults and breaches of AVOs by the plaintiff upon Ms Blackburn. Again, as I have already mentioned, her damages are to be assessed at Common Law.
In final submissions the plaintiff's senior counsel raised a defence to this cross claim that had never been pleaded or even mentioned before. It was said that Ms Blackburn could not recover against the plaintiff because to do so would be to give her damages as a product of her illegal or immoral actions. The Defence to Ms Blackburn's cross claim does no more than "not admit" her allegations of damage. I expressed the view that a defence of the type contemplated should have been pleaded. The very serious criminal offences mentioned by Mr Marshall may well have generated an application for safeguards by the second defendant in giving her evidence. No application was made to amend the plaintiff's Defence to the Cross Claim.
Ultimately the plaintiff relied essentially on a general discretion in the court to exclude or limit Ms Blackburn's damages because of the nature of her conduct.
I was taken to Gala v Preston (1991) 172 CLR 243 and in particular to pages 272 and 291. It was submitted that "a person who is injured while participating in conduct which has been identified by the criminal law as inimical to society should not be entitled to the compensation that the civil law ordinarily provides."
I think the failure to plead the defence precludes my consideration of it. In case I am wrong, however, I make these points:- (a) Ms Blackburn has never been convicted of any criminal offence. There is no suggestion that any such proceedings against her have ever been contemplated.
(b) The harm to her was caused by the accepted criminal conduct of the plaintiff.
(c) The damage to Ms Blackburn did not occur while she was carrying out any criminal activity. Most of the plaintiff's offences occurred some time after the break up. As to those that occurred proximate to the break up, by October 2003, the plaintiff was no longer a student at the school. He was also 18 years of age and there was then no possible criminal act or breach of duty being carried out by Ms Blackburn.
I can therefore see no basis upon which I should not award Ms Blackburn damages. 447. It was then submitted that in assessing any damages I should take into account Ms Blackburn's conduct so as to reduce the extent of the damages. Although this submission has a moral logic about it I find it difficult to implement because once Ms Blackburn has an entitlement to damages then those damages should be fully assessed. This is not to say, however, that I cannot, in considering the assessment of the damages, take into account the circumstances under which the damages arose and the reliability of Ms Blackburn's evidence about the extent of her loss. As Ms Johnston said, if Ms Blackburn had lied to her about the existence of the relationship she would have been a very consummate liar indeed.
(b) An assault by the plaintiff on 11 October 2003.
(c) An illegal entry by the plaintiff into Ms Blackburn's home on 14 October 2003.
(d) The assault of Ms Blackburn in her car on 14 October 2003.
(e) The assault of Ms Blackburn on 26 March 2004 and consequent breach of an AVO.
(g) The breaches of AVOs on 17 January and 2 March 2005.
(i) The firearms offences, including a threat to kill, on 12 October 2007.
(j) The threat to kill with a vehicle and gun made via the plaintiff's mother on 12 May 2008 and communicated by the police to Ms Blackburn.
The allegations in paragraphs (a) and (c) above are not compensable because they are inconsistent with my findings about the existence of the relationship. I am satisfied that the balance of the acts occurred. In fact they are alleged by the plaintiff in his own case. 450. It is impossible to separate each action and attribute to it an amount of damages. In my view the only just way to approach Ms Blackburn's damages is by way of a global sum reflecting the harm caused to her by the plaintiff.
In assessing these damages it is important that I do not include any element arising from Ms Blackburn's own breach of duty to the plaintiff. Thus, for example, she cannot receive damages for losing her job as a teacher. In addition Ms Blackburn did not prove any economic loss arising from her physical or mental trauma, as opposed to the result of her dismissal from her teaching position. Her damages can include the physical injury occasioned by the assaults and the emotional trauma caused by the plaintiff's breaches of the AVOs. The latter, in my view, may include an element of the fear generated in Ms Blackburn's daughter but only to the extent that it is a source of upset to Ms Blackburn.
The physical effects of the assault on 13 October 2003 can be seen in the photographs attached to the affidavit of Ms Blackburn sworn on 14 March 2009 (Exhibit 2D10, Document 54).
The emotional and psychological effects upon Ms Blackburn are generally described by Ms Johnson and are the background to her diagnosis of a PTSD. Although this diagnosis is unchallenged it does need to be treated with some caution. Fundamental to Ms Johnson's counselling of Ms Blackburn was the history that there had been no sexual relationship. Accordingly, the 'injustice' of the plaintiff's actions against Ms Blackburn was exaggerated. In addition, based on my findings, Ms Blackburn dishonestly withheld the truth of the relationship from Ms Johnson whose assessment was no doubt based upon her own acceptance of Ms Blackburn and her treatment of her as a person who had suffered the wrongs that had been described by Ms Blackburn.
In my view the point just made must substantially temper my acceptance of the PTSD as being a reflection of the harm suffered by Ms Blackburn as a result of the plaintiff's intentional torts. If this diagnosis has at its core a dishonest history then the diagnosis must itself be at risk.
Having made the above point I do nevertheless accept that the plaintiff's breaches of AVOs would have been, and perhaps continue to be, sources of significant upset on the part of Ms Blackburn. Once again, I am faced with making an assessment of damages of harm to a person whose evidence I have found, in a very material aspect, to be unreliable.
Taking into account the physical injuries to Ms Blackburn and the distress caused to her by the plaintiff's intentional torts, and including an element of the upset arising from the fear created in Ms Blackburn's daughter, I assess general damages on a global basis in the sum of $60,000. Most of these damages have been suffered in the past so I will allow interest on $50,000 at 2% over 7.3 years. This is $7,300.
If I am wrong in having the capacity to award a global sum then the best break up I could make would be as follows:- (a) General damages of $5,000 for the assault on 13 October 2003.
(b) General damages of $5,000 for the assault on 14 October 2003.
(c) General damages of $2,000 for the physical element of the assault on 26 March 2004.
(d) $48,000 by way of general damages for the mental stress caused by the assaults, threats and breaches of AVOs. 458. Out of pocket expenses are $175. I allow a further $2,000 for future counselling as envisaged by Ms Johnson.
(b) Although I have rejected the plaintiff's argument on causation I nevertheless must recognise that the origin of the plaintiff's tortious actions against Ms Blackburn lie in the intentional torts of Ms Blackburn. 460. A summary of the damages I have awarded Ms Blackburn is in this table:-
General damages $60,000.00 Interest $7,300.00 Past out of pocket expenses $175.00 Future medical treatment $2,000.00 Total $69,475.00
B. Judgment for the plaintiff against the second defendant in the sum of $120,293.65.
C. Judgment for the second defendant against the first defendant on the first defendant's Cross Claim against the second defendant.
D. Judgment for the second defendant against the plaintiff in the sum of $69,475.00 on the second defendant's Cross Claim against the plaintiff. 462. I will hear the parties on costs and on the formal orders I should make arising from the plaintiff having a tutor.
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Withyman
State of NSW & Anor
(1991) 172 CLR 243
(1990) 171 CLR 506
(2006) 229 CLR 638
(2001) 109 FCR 152
(1991) 25 NSWLR 500
(1964) 111 CLR 16
(2003) 212 CLR 511
[2010] HCA 12