Dawson v R

1. [1]

   STERN JA: On 28 June 2023, the applicant, who elected under s 132 of the Criminal Procedure Act 1986 (NSW) to have a judge-alone trial, was convicted of one charge of carnal knowledge by a teacher contrary to s 73 of the Crimes Act 1900 (NSW) (as it then was). The conduct charged was that, on a day between 1 July 1980 and 12 December 1980, at Maroubra, he did unlawfully and carnally know the complainant, a girl above the age of 10 years and under the age of 17 years and who was at that time his pupil. The applicant pleaded not guilty. No defence evidence was adduced at trial. On 15 September 2023 the applicant was sentenced to a term of imprisonment of 3 years with a non-parole period of 2 years, to commence on 30 August 2039 (as the applicant is serving a custodial sentence for another matter).

2. [2]

   The critical issue in dispute at trial was whether an act of carnal knowledge took place whilst the applicant was the complainant’s year 11 Sports Coaching teacher (as he did not teach her in year 12). The complainant was aged 16 years at the relevant time.

3. [3]

   The applicant, who requires leave to appeal and an extension of time for seeking leave, asks this Court to quash the conviction and enter a verdict of acquittal. He pressed three grounds of appeal (renumbered from those in the notice of appeal for convenience):

   1. (1)

      The trial judge erred in failing to take into account evidence relevant to the issue of the date sexual intercourse occurred other than with respect to the credibility of the complainant (ground 1);

   2. (2)

      The trial judge erred regarding the application of the burden and standard of proof (ground 2); and

   3. (3)

      The verdict of guilty was unreasonable (ground 3).

4. [4]

   The applicant relied upon the same evidence and submissions in support of grounds 1 and 2. Having regard to this I will deal with them together.

5. [5]

   Whilst the explanation advanced in an affidavit of Stephen Eccleshaw affirmed 27 November 2024 for the delay in filing these proceedings leaves something to be desired, in the interest of finality and having regard to the merit of the grounds, both an extension of time for seeking leave and leave to appeal should be granted: Xu v R [2023] NSWCCA 93 at [40] (N Adams J, Garling and Hamill JJ agreeing). I would, however, dismiss the appeal.

6. [6]

   The names of a number of the witnesses at trial are subject to statutory non-publication orders under s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). Accordingly, in my judgment I have referred to these witnesses as Witness A, B, C and D, and have included their names only in a confidential annexure to this judgment.

The uncontroversial facts

1. [7]

   Some facts were agreed before the trial judge and some matters were acknowledged by the applicant’s counsel at trial not to be in dispute. The following matters were either agreed or not in dispute.

2. [8]

   The complainant was born in 1964 and was a student at Cromer High School from 1976 to 1981. The applicant started teaching at that school in 1979. The complainant turned 16 in early 1980, and in that year, the complainant was in year 11 and the applicant was her teacher for an elective subject, Sports Coaching. In 1980, the school year ended on 12 December 1980.

3. [9]

   In or around February 1980 the complainant had moved with her mother and two of her sisters into a unit in Dee Why. They remained living in that unit throughout 1980.

4. [10]

   In 1980 and 1981 the applicant and his wife, Lynette Dawson, lived in Bayview with their two young daughters. In July 1980 the complainant attended a birthday party for the applicant’s daughters at his family home. The trial judge recorded (and it is not suggested that this was inaccurate) that the complainant had commenced babysitting for the applicant and Lynette’s daughters by early to mid-July 1980.

5. [11]

   On 8 August 1980 the complainant’s mother remarried and from at least that date the complainant’s stepfather also lived in the Dee Why unit. Prior to that date he sometimes stayed there. The complainant’s mother and stepfather both regularly consumed alcohol. At times after her stepfather moved into the Dee Why unit he was violent, aggressive and/or abusive to her mother and at times he sought to dominate and exert power over the complainant and her sisters.

6. [12]

   On xx November 1980 the complainant was eligible to obtain her New South Wales learner driver’s licence but there were no records available regarding the date when she actually obtained her learner driver’s licence. However, the trial judge recorded the complainant’s evidence as being that she got her learner driver’s licence “about the time she was eligible”, reflecting her evidence (which was not challenged) that she got the licence when (or after) she was eligible, when she was about 16 years and 9 months old.

7. [13]

   In early 1981 the complainant, her mother and stepfather and her younger sister moved to premises in Heather Street, Collaroy Plateau.

8. [14]

   In 1980 and 1981 the applicant, and his twin brother Paul, conducted after-school exercise and fitness classes at Lindfield Public School. In the 1980s there was a swimming pool within the grounds of that school.

9. [15]

   In 1984 the applicant and the complainant married. In February 1990 they separated.

10. [16]

    The applicant’s counsel at trial confirmed that it was not in dispute that the applicant and the complainant engaged in sexual intercourse whilst he was a teacher, and she was a student, at Cromer High School. It was also not in dispute that their first kiss occurred when they were sitting in the applicant’s car at Dee Why Beach and that their first sexual intercourse occurred some time later at the Maroubra home of the applicant’s parents (who were away for the weekend). The complainant’s evidence that this happened either the same week or the week after the first kiss was not challenged.

11. [17]

    There is no contemporaneous statement from the complainant about the commencement of her sexual relationship with the applicant. On a number of occasions over the period from 1990 to 2022, the complainant gave accounts, which included reference to her relationship with the applicant, either to an investigator, the police, or a court. Some of these statements, and transcripts of some of this evidence, were tendered at trial. On many of those occasions, however, the focus of the investigation was the disappearance of Lynette Dawson and not the details of the applicant’s sexual relationship with the complainant or the date of its commencement. Illustrating this, when questioned about the evidence that she gave at the 2003 coronial inquest into the disappearance of Lynette Dawson, the complainant explained:

12. [18]

    As to the history of the complainant’s various accounts of her relationship with the applicant, the trial judge found (and this finding is not challenged):

Grounds 1 and 2

1. [19]

   The nub of the applicant’s contentions on grounds 1 and 2 was that the trial judge’s verdict was erroneous having regard to her Honour’s findings that the complainant’s evidence was unreliable regarding two matters in particular. First, as regards (some of) the complainant’s evidence that she had a learner driver’s licence when the applicant kissed her for the first time (the first kiss) and that the driving lessons were after the complainant got her learner driver’s licence (which, for convenience, I will refer to as the “driving lesson evidence”). Second, the complainant’s evidence that she attended fitness classes put on by the applicant and his twin brother Paul in 1980 (the fitness class evidence).

2. [20]

   As regards the driving lesson evidence, the applicant contended that the trial judge took this into account only when assessing the complainant’s credibility. However, he contended the trial judge should also have taken this into account (and in particular that on some of the applicant’s evidence there was only a very narrow window of time when the first kiss and sexual intercourse could have taken place given that she did not get her learner driver’s licence until on or some time after xx November 1980) when considering whether the offence charged was proved beyond reasonable doubt. The applicant contended that even if the trial judge was not positively satisfied that the first kiss happened after the complainant obtained her learner driver’s licence, the evidence to that effect should nonetheless have been taken into account on the substantive question whether the Crown had discharged its burden of proof.

3. [21]

   The applicant submitted that the trial judge failed to take this evidence into account in that way and thus erred in failing properly to apply the burden and standard of proof. The applicant contended that the trial judge should have made a finding to the following effect:

4. [22]

   The applicant contended that the trial judge made “a similar error” with respect to the fitness class evidence. He relied upon the complainant’s evidence that she thought that the fitness classes occurred before she got her learner driver’s licence and the trial judge’s finding that the complainant gave unreliable evidence about her attendance at the fitness classes with the applicant in 1980. As with the evidence relating to the first kiss, the applicant contended that the trial judge erred in not taking this evidence into account on the substantive issue whether the offence had been proved beyond reasonable doubt. He contended that this was significant evidence bearing on the ultimate issue whether the prosecution had proved its case beyond reasonable doubt.

5. [23]

   As with the driving lesson evidence, the applicant contended that this Court should not infer that the trial judge took this evidence into account when considering whether the Crown had proved its case beyond reasonable doubt. He relied in particular upon the absence of any discussion of the evidence after making findings as to it, contending that this tended to indicate that the evidence was not so taken into account.

6. [24]

   On the question of the timing of the first instance of sexual intercourse between the applicant and the complainant, the complainant gave evidence that she first had sexual intercourse with the applicant at his parents’ house in Maroubra, and that this occurred in about August or September of 1980.

7. [25]

   No-one other than the complainant gave evidence at trial as to the timing of the first instance of sexual intercourse. The complainant had not told anyone at the time that she was having sexual intercourse or sexual activity with the applicant, and it was not suggested that anyone else witnessed this sexual activity. In these circumstances, the Crown made it clear in opening that witnesses other than the complainant were called as to observations they made at the time in support of the timeline contended for by the Crown. This evidence was not relied upon in support of a circumstantial case. It was relied upon as providing support for the complainant’s account. As the trial judge found, the most critical evidence called at trial was that of the complainant.

8. [26]

   It is axiomatic that the trial judge’s assessment of the complainant’s evidence as to when she first had sexual intercourse with the applicant required more than a finding that the complainant was giving honest evidence: see, eg, Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086 at [13]. It also required that the trial judge assess that evidence as being reliable, in the sense that it could be relied upon to exclude a reasonable possibility consistent with the applicant’s innocence. In this regard, the word “reliable” can have a variety of connotations. It can refer, as appears to be its usage in the joint judgment in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (“Pell”) at [39], to whether a witness is “credible and reliable”. However, it can also be used, as it was by the trial judge, to refer to the reliability of evidence, in the sense that it can properly be relied upon to sustain a particular finding or verdict. Used in that way, “reliability” encompasses the issue (identified in Pell at [39]) whether by reason of inconsistencies, discrepancies or other inadequacies or in the light of the evidence as a whole the evidence can be relied upon to support a verdict.

9. [27]

   As to the reliability (in the sense used by the trial judge) of the complainant’s core evidence as to the timing of the first instance of sexual intercourse, there were in essence three categories of evidence:

   1. (1)

      The complainant’s evidence as to the timeline of this event, relating it to a range of other events, discussed further below;

   2. (2)

      The notes and cards which the complainant said that the applicant gave to her in 1980 and 1981 (the complainant’s evidence of which went to the timeline); and

   3. (3)

      Evidence from friends and people who knew the complainant and the applicant in 1980.

10. [28]

    Some of that evidence went directly to the question whether the applicant and the complainant first had sexual intercourse whilst she was in year 11 because it was evidence that tended to suggest that, by a particular point in time, a sexual relationship had developed between the applicant and the complainant. Much of that evidence, however, simply went to the reliability of the complainant’s timeline of events and whether that sufficed to prove the offence beyond reasonable doubt.

11. [29]

    As to evidence going solely to the reliability of the complainant’s account, which includes the driving lesson evidence and the fitness class evidence, there were two ways in which the evidence could lead to the trial judge finding that the Crown had not proved its case beyond reasonable doubt. First, it could undermine the complainant’s credibility generally. Second, it might lead to the trial judge not being satisfied that the applicant was guilty beyond reasonable doubt because the particular evidence (whether alone or in conjunction with other evidence) suggested a reasonable possibility that the first instance of sexual intercourse occurred after 12 December 1980, being the end of the 1980 school year at Cromer High School.

12. [30]

    In both respects, the evidence would aptly be described as going to the “reliability” of the complainant’s core evidence as to the timing of the first instance of sexual intercourse. That was the key matter for the trial judge to assess. This is because, given the matters set out above, the unwavering question for the trial judge was whether the applicant should be convicted in circumstances where the only evidence going directly to the offending conduct was that of the complainant.

13. [31]

    The starting point when considering grounds 1 and 2 is to focus upon the way in which the trial judge approached the evidence as a whole.

14. [32]

    The trial judge directed herself in accordance with directions annexed to her reasons for verdict. Relevantly, these included:

15. [33]

    Those directions, which the trial judge confirmed in her judgment she had “borne closely in mind in considering [her] verdict” are consistent with the trial judge approaching the driving lesson evidence and the fitness class evidence on the basis that it was evidence which bore upon the ultimate question whether the Crown case was proved beyond reasonable doubt. Further, in light of these directions, I would infer that references by the trial judge in her judgment to the “reliability” of the complainant’s evidence encapsulate both whether the evidence was honest and whether the complainant was mistaken in her core evidence as to the timing of first instance of sexual intercourse. Understandably, no complaint was made on appeal about these directions.

16. [34]

    The trial judge also said in her judgment that:

17. [35]

    The trial judge thus confirmed that she would carefully scrutinise the whole of the complainant’s evidence, which plainly would include all of the evidence that the complainant gave as to the timeline of events, when deciding whether her evidence as to the core matter should be accepted as proof of the applicant’s guilt.

18. [36]

    When considering the applicant’s contentions on grounds 1 and 2, it is of some importance to observe that the trial judge was clearly cognisant of the applicant’s contention that the driving lesson evidence went to the fundamental issue of whether the offence was proved beyond reasonable doubt:

19. [37]

    Immediately prior to setting out her conclusions on the evidence, the trial judge reminded herself that:

20. [38]

    Contrary to the applicant’s contention, this entails two elements. First, a very careful scrutiny of the complainant’s evidence, which would naturally comprise the complainant’s evidence as a whole. Second, the taking into account of concerns about the accuracy of the complainant’s evidence. Contrary to the applicant’s submission, read in the context of the trial judge’s approach to evidence, the passage set out immediately above does not suggest that the trial judge took the driving lesson evidence or the fitness class evidence into account only on the issue of the complainant’s credibility.

21. [39]

    I would thus reject the applicant’s complaint that the trial judge failed in her judgment to identify that the driving lesson evidence and the fitness class evidence went to the ultimate question whether the Crown had proved the applicant’s guilt beyond reasonable doubt.

22. [40]

    The trial judge made a number of findings which provide important background to the first kiss.

23. [41]

    First, the trial judge found that in 1980 but before 30 September 1980, the applicant approached a boy whom I will refer to as Witness A, with whom the complainant worked at Coles, and “made physical contact with him and threatened him to stay away from the complainant and not to go near her”. Her Honour found that the applicant did so because he “viewed 16-year-old [Witness A] as a rival or potential rival for the complainant’s affections because at that time the [applicant] was attracted to her.”

24. [42]

    Second, at some time after the beginning of year 11 there was an incident in which the applicant handed back to the complainant a topless photograph of her that had been confiscated. The trial judge found that the complainant’s initial evidence as to the timing of this event was inaccurate and that this was “something I must take into account in assessing her evidence in relation to critical matters.”

25. [43]

    Third, the complainant came to the applicant for help in year 11. The complainant spoke to the applicant about issues she was experiencing in her home life when visiting him “in the staff room at recess and/or lunch in a context in which she felt he was warm and caring and listened to her and she trusted him.”

26. [44]

    Fourth, the trial judge accepted the complainant’s evidence that there was an incident of jostling between the applicant and another teacher as to who would teach which of the two elective Sports Coaching classes and that the applicant led the complainant to believe that he had chosen her to be in his class because he thought that she was beautiful and wanted to get to know her. The trial judge also accepted the complainant’s evidence that sometime in year 11 the applicant told her he wanted her to be in his class and that this was part of what the complainant described as “the grooming process”.

27. [45]

    Fifth, in the first half of 1980 the applicant selected the complainant (and one other student) to attend a sports carnival with him and whilst there put his hand on her knee.

28. [46]

    Sixth, the complainant first met Lynette Dawson at a tennis match in 1980 that was intended to provide an opportunity for Lynette Dawson to “clear” her for babysitting the children of the applicant and Lynette Dawson.

29. [47]

    Seventh, as set out above, the complainant commenced babysitting for the applicant and Lynette Dawson by early to mid-July 1980. Babysitting was an ongoing and increasingly regular occurrence but the trial judge rejected the complainant’s evidence that she babysat every week in year 11. Again, consistent with the trial judge’s approach to evidence set out above, her Honour said that this was “something to take into account in assessing her evidence in relation to critical matters.”

30. [48]

    Eighth, on occasion in 1980 the applicant, together with his brother Paul, would attend the Time and Tide Hotel on a Friday night to see the complainant. The trial judge found that the reason the applicant did so was “because he was interested and attracted to [her] and interested in endearing himself to her.”

31. [49]

    In oral evidence at trial the complainant gave varying evidence as to the link between the driving lessons and the first kiss.

    1. (1)

       “The first time he kissed me was in the Dee Why beach carpark in his car, probably during the driving lessons … During the, you know, over the course of the driving lesson period when he was teaching me to drive. And he parked down there at the beach. I don’t think I was driving at the time”.

    2. (2)

       This was not long, “[a] month or so”, after she had started babysitting the applicant’s children (which, as set out above, was accepted to be by early to mid-July 1980).

    3. (3)

       “I can picture it and I think that he was driving the car at the time, or sitting in the driver’s seat. But it was daylight.” She said that before he kissed her they were “[p]robably just driving around the area. I don’t – I don’t recall, but we ended up at Dee Why beach, which was near my home”.

    4. (4)

       “It was for the driving lessons itself, that was the reason I was in the car with him”.

    5. (5)

       When asked what reference points she had to say that the first instance of sexual intercourse was in August or September 1980 she said:

    6. (6)

       The first kiss occurred around the time when she started driving.

    7. (7)

       She got her learner driver’s licence “when I was eligible, like 16 and 9 months” (being xx November 1980).

    8. (8)

       She thought the first kiss was when she was living at Dee Why not Heather Street. She explained that this was because she had “quite a clear recollection of bunny hopping … in a manual car, and I remember bunny hopping past our unit at Dee Why and you do that when you get into the car.”

    9. (9)

       At some point during the driving lessons the applicant kissed her for the first time.

    10. (10)

        During cross-examination, the following exchange occurred:

    11. (11)

        She said that “the point is, the first kiss happened in his car. It may have been before I took driving lessons … [T]he point is it all happened in 1980”. She said that the first kiss may have happened before the driving lessons as “it happened in his car in 1980 when we spent time in the car. He’d drive me to the, you know, the exercise classes, he’d drive me home. He had ample opportunity to do that.”

    12. (12)

        She said that it was “quite possible” that she was having driving lessons before she had her licence, “just so he could get me in the car. You know, my – my – it might just be that I was in the car so often with him that it’s blurred when the driving lessons started.” She denied that she had made this up in the witness box.

32. [50]

    The complainant had given varying evidence as to the driving lessons and the link between these and the first kiss in some earlier accounts she had given that were in evidence at trial.

    1. (1)

       In a statement given in June 1998 for the purpose of an inquiry conducted by an employee of the Department of Education and Training into three teachers including the applicant, she said that the applicant had “[a]t some stage” started to give her driving lessons and that the first kiss occurred during one of those lessons.

    2. (2)

       In a statement given to police in September 1998 “in the matter of missing person Lynette Joy Dawson” she said that the applicant would pick her up from Heather Street to give her driving lessons and on one of those occasions he first kissed her.

    3. (3)

       During the inquest in 2003 examining the disappearance of Lynette Dawson, she said that when the applicant was teaching her to drive there was an occasion when they stopped and parked at Dee Why Beach and he kissed her.

    4. (4)

       In a statement given to police in 2019 she said that she was confident that the first time the applicant had sex with her was before she obtained her learner driver’s licence and before he started teaching her to drive.

33. [51]

    The applicant’s counsel at trial submitted that the complainant had made up her evidence that the first kiss might have occurred before she had her learner driver’s licence and that her Honour would find that the complainant had consistently drawn a connection between the first time the applicant kissed her with the time frame after she obtained her learner driver’s licence. She submitted that the complainant had a motive to lie on this issue and that her Honour would have a doubt about whether the driving lessons had even commenced whilst the complainant was living in Dee Why. The applicant’s counsel at trial also submitted that:

34. [52]

    The trial judge observed that the complainant’s evidence regarding the timing of the first kiss was “very much disputed”. Her Honour described the applicant’s submission as being that the inconsistencies in the complainant’s evidence and the previous accounts the complainant had given were such that she could not be satisfied when it occurred, which gave rise to “serious doubts regarding the timing of the first instance of sexual intercourse”.

35. [53]

    As set out above at [35], the trial judge was plainly cognisant of these contentions.

36. [54]

    The trial judge recounted that the earliest that the complainant could have got her learner driver’s licence was xx November 1980 and held that it was open on the evidence to conclude that the complainant held her learner driver’s licence during the period alleged in the indictment. The trial judge must be understood here to be finding that there were two possibilities open on the evidence, being that the complainant did, or did not, hold her learner driver’s licence during the relevant period. Having made this finding the trial judge was not required to make a finding, still less be satisfied beyond reasonable doubt, as to whether or not the first kiss occurred before or after the complainant got her learner driver’s licence: see generally the distinction identified in the Court’s judgment in Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15; 98 ALJR 644 at [19] and the distinction drawn in HO v The King [2023] NSWCCA 245 at [109] (Wilson J, Beech-Jones CJ at CL and R A Hulme AJ agreeing).

37. [55]

    As to this, her Honour observed that the complainant was “unable to recall where in the timeline of the sports carnival, the tennis game, the commencement of babysitting, the first kiss in the car and the occurrence of [the first act of sexual intercourse] it was that she got her learner driver’s licence.”

38. [56]

    As to the complainant’s evidence in the police statement in 1998 described at [50] above, that the driving lessons occurred when she was living in Heather Street (which would have put them in 1981 and not 1980), the trial judge found that there was “insufficient context to that statement to conclude it necessarily means that the complainant was asserting that the driving lessons in fact started for the first time when she lived at Heather Street.” Again, the trial judge was clearly aware of the possible ambiguity in that evidence, and I would infer that her Honour took that possibility into account.

39. [57]

    Her Honour then said:

40. [58]

    As is clear, the trial judge was well aware that the complainant’s evidence left open a possibility that the first kiss occurred during driving lessons. That possibility is the basis upon which she could not make a finding as to the timing of the driving lessons in relation to the first kiss. Further, the trial judge’s express reference to the conflicting evidence giving rise to concerns about the accuracy of the complainant’s evidence does not suggest that she otherwise put the driving lesson evidence to one side when considering whether there was a reasonable possibility that the applicant was innocent.

41. [59]

    Of course, if the first kiss occurred after the complainant had her learner driver’s licence this left a narrow window of time within which both the first kiss and sexual intercourse would have to have occurred on the Crown case. If the first kiss occurred before the complainant had her learner driver’s licence the window was broader but might indicate greater concerns about the reliability of the complainant as a witness given how often her evidence linked the first kiss with driving lessons and her learner driver’s licence. Neither possibility necessarily gave rise to a reasonable doubt as to the applicant’s guilt. There was no intermediate fact here for the Crown to prove in order to establish guilt. Rather, the evidence and the competing possibilities had to be weighed in the balance by her Honour when considering whether the Crown had had proved guilt beyond reasonable doubt. Consistent with her stated approach to the complainant’s evidence as set out at [32] to [39] above, I would infer that this is precisely what the trial judge did.

42. [60]

    The applicant’s contention that the trial judge erred in her treatment of the driving lesson evidence should be rejected.

43. [61]

    The complainant gave evidence that before she received her learner driver’s licence and before the driving lessons, every Tuesday afternoon in 1980 she attended exercise classes at Lindfield Public School run by the applicant and his brother Paul. She said this went on “[o]ver months”. She said that when Paul Dawson was running a class she and the applicant would “duck out the back and he would, you know - there would be kissing and cuddling and canoodling”. She said there was a pool at Lindfield Public School and she recalled having sex with the applicant at one end of the pool while Paul Dawson and CD (whom the complainant described as Paul Dawson’s girlfriend) were at the other end of the pool, although later in her evidence she said that she started attending the fitness classes before she had sexual intercourse for the first time with the applicant at Maroubra, and that “maybe we didn’t have sex in the pool, it might have just been the fondling et cetera”.

44. [62]

    She said that she thought that she started attending the fitness classes before she got her learner driver’s licence because:

45. [63]

    She was asked whether she recalled attending the fitness classes the following year, being 1981, and she replied “no”. When asked what made her sure about that, she then explained:

46. [64]

    In cross-examination, the complainant disagreed with a suggestion that she did not start attending the fitness classes until 1981.

47. [65]

    Other witnesses gave evidence at trial as to the fitness classes.

48. [66]

    CD said that she would go with the complainant to the fitness classes and then swim in the pool at Lindfield Public School with the complainant, Paul Dawson and the applicant after the fitness classes and said they were “kissing and cuddling and doing whatever”. Consistent with the complainant’s evidence, CD said that she would spend time with Paul Dawson in a room and the complainant would spend time with the applicant in a room. CD’s recollection was that this was at the end of the year when she was in year 9 (being 1980) and the beginning of her year 10 (in 1981). However, CD also said that in 2018 she had been told by another witness, Leigh Maloney, that this all occurred when CD was in fact in year 10. Ultimately the trial judge found that those aspects of CD’s evidence going to the timing of events should be “put to one side”.

49. [67]

    Ms Maloney gave evidence that the fitness classes were run by the applicant and Paul Dawson during the school term and not in the school holidays, and that she attended the fitness classes in 1981 and not 1980. She recalled seeing “two young girls sitting at the back of the school hall, where the fitness classes were held” and that “it was explained that they were the babysitters for the instructors.”

50. [68]

    On the basis of Ms Maloney’s evidence, the trial judge found that the complainant attended the fitness classes in 1981 and that she was inaccurate in her recollection that she did not do so. Having found that Ms Maloney could not speak to whether the complainant attended the fitness classes in 1980, her Honour found “the complainant’s evidence regarding attendance of fitness classes in 1980 to be unreliable. It was confused and at times contradictory with other evidence she gave and with other evidence I accept as reliable.”

51. [69]

    As senior counsel for the applicant accepted, the trial judge did not, however, make a finding that the complainant did not attend the fitness classes at all in 1980 and only attended in 1981. Rather, she found that her evidence on this subject was, as a whole, unreliable which, senior counsel for the applicant submitted, reflects a reasonable possibility that she did not attend in 1980 which, in turn, supports there being a reasonable doubt as to whether sexual intercourse occurred in 1980.

52. [70]

    Her Honour found that “the complainant was mistaken and therefore inaccurate regarding the timing of fitness classes. I do not find that she was deliberately dishonest.” Her Honour added:

53. [71]

    The trial judge’s finding as to the unreliability of the complainant’s evidence as to the fitness classes in 1980 is readily explicable. The level of sexual intimacy described by the complainant as occurring at or after the fitness classes, on a weekly basis “[o]ver months”, could not logically have occurred before at least the first kiss. To the extent that the complainant said in her evidence in chief that sex occurred in the pool, that must logically have taken place after the first instance of sexual intercourse which, on the evidence, occurred in Maroubra. In addition, the complainant’s characterisation of the fitness classes as part of the grooming process does not fit naturally with the level of intimacy the complainant said occurred at or after the classes.

54. [72]

    The reality is that there were only two ways in which this evidence could have suggested a reasonable doubt. First, because it showed that the complainant’s evidence was in some respects not accurate and that could have undermined the reliability of the complainant’s evidence as a whole. Second, because the acceptance of part but not all of the evidence might have suggested that the fitness classes were part of the grooming process that did not occur prior to 1981 and that the first kiss must, therefore, also have occurred in 1981. As to the former, the trial judge expressly adverted to this. As to the latter, this was encapsulated in the trial judge’s directions and approach to the evidence as a whole, as set out above at [32] to [39], and I would infer that the trial judge had regard to this when considering the complainant’s evidence as a whole for the purpose of determining whether the applicant was guilty.

55. [73]

    The applicant’s contention that the trial judge erred in her treatment of this evidence should be rejected.

56. [74]

    The trial judge was satisfied beyond reasonable doubt of the applicant’s guilt on the basis of the complainant’s evidence that he committed an act of carnal knowledge when she was 16 years old and his student. The trial judge found that the following matters supported this finding.

    1. (1)

       The applicant’s conduct towards Witness A prior to 30 September 1980 and the reason why the applicant behaved that way (see [41] above).

    2. (2)

       The applicant having told the complainant she was beautiful when she was in year 11. The complainant’s evidence as to this, which the trial judge accepted, was that early in year 11 the applicant told her that he had seen her in the playground when she was in year 10 and thought to himself that he would “really like to get to know her. She’s beautiful”.

    3. (3)

       The complainant sitting on the applicant’s lap while in his office when she was in year 11 (in 1980). This is based upon evidence of Witness B, that the trial judge clearly accepted, that on one occasion which was “definitely [in] year 11” she opened the door to the applicant’s office and saw the complainant siting on his lap. Witness B had said that from around March or April in year 11 the complainant would go into the applicant’s office for the whole of recess and the whole of lunch and that by a point later in the year this happened every recess and lunch.

    4. (4)

       The complainant sitting on a desk in the applicant’s office while the applicant was standing between her legs when she was in year 11. This is based upon the evidence of Witness C, which the trial judge accepted, that on one occasion in 1980, when she was in year 9, she had to give a note for missing sport and the door was a bit ajar so she went in. The complainant was sitting on a desk and the applicant was standing between her legs about 20 or maybe 25 centimetres from her.

    5. (5)

       The complainant sitting on a fence near the carpark at Cromer High School while the applicant was standing in front of her and between her legs in year 11. This is a reference to evidence of Witness D, which the trial judge accepted, that she left Cromer High School during 1980 when she was in year 11, and before leaving the school she saw the complainant sitting extremely close to and facing the applicant, with the applicant standing in front of her between her legs and with their bodies touching each other. She said “definitely they were close and you know, it’s obvious that was more, that was an intimate thing.”

    6. (6)

       The applicant saying that he loved the complainant and wanted to marry her towards the end of year 11. Whilst the trial judge said of this: “I note that it is not correct to describe this evidence as being independent of the complainant”, as the Crown submitted, this is likely to be an observation that the trial judge intended to qualify the next sub-paragraph of her judgment. This is because the evidence as to the applicant saying that he loved and wanted to marry the complainant came both from the complainant and from Witness B. The complainant’s evidence was that the applicant asked her to marry him when she was 16 “many, many times”. She said that the first time that the applicant proposed to her was after the first instance of sexual intercourse and thereafter he “relentlessly” asked her to marry him. Witness B’s evidence, which the trial judge accepted, was that by the end of year 11 the complainant told her: “He wants to marry me and he’s going to look after me”.

    7. (7)

       The occurrence of the incident sometime between 12 December 1980 and the beginning of the 1981 school year. [Redacted].

    8. (8)

       The applicant addressing a Christmas card in 1980 to “Petal” and signing the card “Love always, God”. The trial judge found this to be powerful evidence that supported and was consistent with the timeline of events described by the complainant and completely inconsistent with the developing relationship in which the accused was merely becoming “romantic” towards the complainant after the end of the 1980 school year.

    9. (9)

       The applicant addressing a 17th birthday card, delivered on or around xx February 1981, to “The most beautiful girl in the world” with a message that included, “Knowing we will share all the birthdays to follow. All my love forever. xxx”. The trial judge found this to be powerful evidence revealing that on or around the complainant’s 17th birthday the applicant (a mature man as opposed to an immature teenager) was confident in the existence of a reciprocal and permanent relationship and that that was because a sexual relationship had commenced between 1 July 1980 and 12 December 1980.

57. [75]

    Her Honour found that the inconsistencies in the complainant’s evidence did not “shed doubt on the truthfulness of her evidence and the accuracy of her evidence as to critical matters.”

58. [76]

    When explaining her finding that she was satisfied beyond reasonable doubt that the applicant committed the offence charged, the trial judge referred to the evidence that supported her conclusion that guilt was proved beyond reasonable doubt but did not refer to all of the evidence that did not provide such support. But her Honour did not need to do so. Her Honour had carefully set out all of the relevant evidence, including the driving lesson evidence and the fitness class evidence. It was plain that her Honour had considered all of this evidence and, for the reasons I have already set out, I am entirely satisfied that her Honour had regard to all of that evidence when reaching her ultimate conclusion as to the applicant’s guilt.

59. [77]

    It follows that grounds 1 and 2 must be dismissed. The trial judge did not err in her treatment of the evidence.

Ground 3 – unreasonable verdict

1. [78]

   As to ground 3, the applicant’s contention was that the trial judge ought to have had a reasonable doubt, given the following matters.

   1. (1)

      The reasons for considering the complainant’s memory to be reliable as to the event of having sexual intercourse with the applicant for the first time do not necessarily apply to her memory of the timing of that event.

   2. (2)

      There were significant disadvantages faced by the applicant by reason of delay because of the lack of available records of relevant events, the death of the applicant’s parents which meant that he was unable to get evidence from them as to when they were away from their home on a weekend, and prejudice to his ability to obtain exculpatory evidence. These disadvantages required the complainant’s evidence be scrutinised with great care.

   3. (3)

      There were real concerns with the timing of the reference points of the driving lessons and the fitness classes and the trial judge’s findings as to the unreliability of the complainant’s recollection in relation to both the driving lesson evidence and the fitness class evidence cast doubt upon the reliability of the complainant’s core evidence as to the timing of the first kiss and the first instance of sexual intercourse.

   4. (4)

      The evidence relied upon by the trial judge as supporting the complainant’s evidence as to the timing of the first instance of sexual intercourse with the applicant went only to whether the applicant engaged in “romantic” behaviour towards the complainant and not to when the first instance of sexual intercourse between them occurred.

   5. (5)

      The complainant’s evidence of the “incident” which occurred before the beginning of the 1981 school year was “not independent” as it only came from the complainant.

2. [79]

   There is no dispute as to the relevant law. In Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 (“Dansie”) at [7]-[8] the High Court explained the function to be performed by a court of criminal appeal when determining an appeal on an unreasonable verdict ground:

3. [80]

   At [9] of Dansie, the Court extracted what it described as the “carefully crafted” passage in M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63 regarding the role of the jury as “the body entrusted with the primary responsibility of determining guilt or innocence”:

4. [81]

   As to the circumstance of a trial by judge alone, the Court in Dansie said at [16]-[17]:

5. [82]

   The applicant contended that, in the absence of significant corroboration of the complainant’s account as to the timing of the first instance of sexual intercourse (of which there was none), the trial judge ought to have experienced a reasonable doubt as to the applicant’s guilt and that this Court would have such a doubt.

6. [83]

   The applicant submitted that here, where the concerns as to reliability do not relate to the truthfulness of the complainant, the trial judge was in no better position to assess the reliability of the complainant’s evidence: Passmore v R [2023] NSWCCA 65 at [74]-[75] (Payne JA, Garling J agreeing). I agree. Having said that, however, the trial judge was plainly in a better position than this Court to assess the credibility of the various witnesses. I do not understand the applicant to be suggesting that this Court should depart from any of the trial judge’s findings as to such matters. Save for those matters, I have considered for myself the entirety of the evidence, and the significance that I should give to inconsistencies in the evidence.

7. [84]

   I have independently considered the weight that I should give in this assessment to the evidence of the complainant as to the first kiss occurring in the context of her having driving lessons, and that her attendance at the fitness classes formed part of the applicant’s grooming of her.

8. [85]

   As to the former, I am satisfied that the first kiss occurred whilst the applicant was in the driving seat of his car and the car was parked at Dee Why Beach. For the reasons set out below, I am also satisfied, having regard to the evidence as a whole, that this was whilst the complainant was a student of the applicant in year 11 at Cromer High School.

9. [86]

   There was no dispute that the first kiss occurred the same week as, or the week before, the first instance of sexual intercourse and I am satisfied to the requisite standard that this occurred prior to the end of the complainant’s year 11 at Cromer High School. In this regard, I consider that the evidence of the complainant is strongly supported by the evidence which the trial judge relied upon, and which I have set out above at [74]. That evidence admits of no other reasonable possibility than that the applicant and the complainant first had sexual intercourse before the end of her year 11.

10. [87]

    In particular, the incident that occurred between the end of the school year and the start of the following school year provides weighty support for this conclusion, allowing for the passage of time that must thereby have taken place and having regard to the complainant’s evidence that she had had sexual intercourse with the applicant on a number of occasions before the incident. [Redacted]. I also place particular weight on others’ observations of the applicant and the complainant at the school and the timing of the complainant’s disclosure to Witness B that the applicant wanted to marry her when viewed in the context of the complainant’s evidence that he first said this to her after they had sexual intercourse for the first time. Having regard to the evidence as a whole, I do not consider that there is a reasonable possibility that these matters are explained by a romantic but non-sexual relationship between the complainant and the applicant prior to the end of the school term in 1980.

11. [88]

    I have also given weight to the complainant’s evidence that the first instance of sexual intercourse was about a month after she commenced babysitting for the applicant around July 1980. This evidence, which may or may not be precisely accurate in terms of time period, nonetheless supports a conclusion that sexual intercourse followed fairly swiftly after the complainant began babysitting. Given the complainant’s evidence that babysitting involved her staying at the applicant’s house overnight, and that the applicant drove her from her home to his home and back when she babysat, the fact of the complainant babysitting for the applicant clearly presented many occasions when the complainant and the applicant were in the applicant’s car, and also increased opportunities for intimate contact. In the context of the other evidence I have referred to at [87] above, this provides further support for the conclusion that sexual intercourse occurred before the end of the school year in 1980.

12. [89]

    I have also had regard to the complainant’s evidence that she wrote something “exotic” on her year 11 Sports Coaching exam because she knew they were having sex, leading to her getting a mark of zero on that question. I agree with the trial judge that this evidence had a ring of truth. It provides further support for the conclusion which I would have drawn in any event, that there is no reasonable doubt as to the applicant’s guilt.

13. [90]

    A number of possibilities are presented by the evidence as to the timing of the first kiss in relation to the timing of the complainant getting her learner driver’s licence. It may be that the complainant got the licence on or shortly after xx November 1980 and that the driving lessons, first kiss and sexual intercourse occurred very shortly after this, but before the end of year 11. It may be that the complainant was mistaken in this evidence and the first kiss occurred before the driving lessons began and simply in the context of the applicant driving the complainant for another purpose. Or it may be that the driving lessons began before the complainant obtained her learner driver’s licence.

14. [91]

    Like the trial judge, I am unable to resolve which of these is more likely but I have taken them all into account. Weighed in the context of the evidence as a whole, this evidence does not raise a reasonable doubt as to the applicant’s guilt.

15. [92]

    Nor does the driving lesson evidence cause me to doubt the reliability of the complainant’s core account as to the timing of the first instance of sexual intercourse with the applicant. Given the passage of time before the complainant was asked to give a detailed account of the timing of this, and that in that intervening period, there was an ongoing sexual relationship between the complainant and the applicant, Lynette Dawson disappeared, and the complainant married and then divorced the applicant, I would expect some inaccuracies as to the detail of the account. The essential element of the account, that the sexual intercourse occurred when she was still in year 11, was not undermined by this evidence or by the inconsistencies.

16. [93]

    As to the evidence relating to the fitness classes, I am satisfied that the complainant must have been mistaken in her evidence that over a period of months she attended regular Tuesday night sessions involving intimate activity between her and the applicant during year 11. It may be that towards the end of year 11 the complainant attended the fitness classes and some intimate contact with the applicant occurred. It may be that this occurred on more than one occasion. There is also the possibility that her attendance at the fitness classes began as part of the grooming process in year 11 and that the intimate contact at the fitness classes occurred later in year 11 or only in 1981 when the complainant was in year 12. Another possibility is that the complainant did not attend the fitness classes at all until year 12. Viewed in the context of the evidence as a whole, the complainant’s evidence as to the fitness classes and the possibilities it throws up does not give rise to a reasonable doubt that the first instance of sexual intercourse occurred whilst the complainant was in year 11. More particularly, I am satisfied that there is no realistic possibility that the applicant used the fitness classes as part of his grooming of the complainant in 1981 (rather than 1980).

17. [94]

    As is clear, having regard to the evidence as a whole, I am wholly satisfied that it is sufficient in nature and quality to eliminate any reasonable doubt as to the applicant’s guilt. Ground 3 should be dismissed.

Conclusion

1. [95]

   The orders I propose are:

   1. (1)

      Extend time to file the notice of appeal.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Dismiss the appeal.

2. [96]

   HAMILL J: I have had the considerable advantage of reading the judgment of Stern JA circulated in draft and the short concurrence of McNaughton J. I agree with their Honours, for the reasons provided by Stern JA, that grounds 1 and 2 cannot be sustained. However, I have reached a different conclusion in respect of ground 4 which asserts that the verdict is unreasonable. A proposed third ground of appeal was abandoned.

3. [97]

   On an independent review of the whole of the record of the triaI, I am not satisfied beyond reasonable doubt that the sexual intercourse that founded the single count occurred (or commenced) before 12 December 1980. That date was particularised in the indictment and was critical because it was when the complainant finished Year 11 and ceased to be the applicant’s pupil. It also fell before the complainant’s 17th birthday (in February 1981). That the complainant was under 17 years old and was the applicant’s pupil at the time of the sexual intercourse were essential elements of the offence.

4. [98]

   Thanks to the thorough analysis undertaken by Stern JA I am relieved of the need to discuss the issues that arise in great detail or to set out much of the evidence upon which my conclusion is based. Like the presiding Judge, I have approached the task in accordance with the High Court’s judgment in Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25. I have taken into account the reasoning and findings of the trial Judge (“the primary judgment”), especially where those were not contested by either party on the appeal, but I have not allowed “undue attention to the factual findings on which the trial judge relied in returning a verdict of guilty” to distract me from the task of making an independent assessment of the evidence: Dansie v The Queen at [7].

5. [99]

   One important finding that was not contested on appeal was that the complainant was an honest witness doing her best to provide an accurate account more than 40 years after the events. Even where the trial Judge found the complainant to be unreliable on a particular issue or identified inconsistencies in her account or conflicts with other witnesses, her Honour did not doubt the complainant’s honesty.

6. [100]

   What was not, and is not, in dispute is that the applicant engaged in reprehensible conduct and that the complainant was the victim of that conduct. As a teacher at her school and as her employer in the context of the complainant babysitting for his family, the applicant nurtured an adulterous affair with the complainant, grooming her in the latter years of high school, and ultimately had a sexual relationship with her. That relationship endured for some time into the complainant’s adulthood and the applicant and complainant were married after his wife’s “disappearance”. [1] The only relevance of the latter matter was that the complainant provided various accounts over many years, during which she recounted some of the details of her relationship with the applicant. Until quite recently, those versions were provided in the context of the investigation into Mrs Dawson’s disappearance and homicide, rather than being focussed on the detail of when the complainant and the applicant first had sex. This meant that inconsistencies in previous versions did little to undermine her credibility, a matter the trial Judge recognised in the passage set out by the presiding Judge at [18].

7. [101]

   Stern JA set out the undisputed evidence and uncontroversial facts at [7]-[18].

8. [102]

   The single count on the indictment alleged that the act of carnal knowledge occurred “between 1 July 1980 and 12 December 1980 at Maroubra” when the complainant was the applicant’s pupil and “under the age of 17 years, namely 16 years”. The trial was fought on the confined issue that it was not established beyond a reasonable doubt that the applicant carnally knew the complainant when she was under 17 years of age and still the applicant’s pupil. The issue was identified in defence counsel’s admirably clear and concise opening address at the trial.

9. [103]

   The complainant’s evidence included what was, on its face, a clear assertion that the sexual relationship commenced when she was 16 years of age and a student in the applicant’s sports class. For example, having agreed she “turned 16 in February 1980 and 17 in February 1981”, she said the first occasion of sexual intercourse occurred in the evening at the applicant’s parent’s home in Maroubra in “about August. September [of 1980]”. She was asked about reference points “to say that it was August or September” and said:

10. [104]

    The complainant went on to say that she “performed oral sex on him” at recess or lunch in his office when she was still in Year 11 and spoke of an incident which occurred in the school holidays between late December 1980 and January 1981. That incident is subject to non-publication orders and was subject to two redacted portions (“A” and “B”) of the primary judgment (MFI 31). If that incident occurred at that time, it would provide a foundation for an almost irresistible inference that sexual intercourse occurred in the period nominated in the indictment. However, the passage of time meant that investigations into significant aspects of the incident were inconclusive or thwarted.

11. [105]

    As the evidence analysed by Stern JA demonstrates, two of the anchors for the complainant’s evidence that sexual intercourse first occurred in August or September of 1980, or at least before 12 December 1980, proved to be questionable. This was reflected in the primary judgment and formed the basis of the first two grounds advanced on appeal. I will not repeat the more detailed summary of the evidence and findings in the judgment of Stern JA at [41]-[60] (the first kiss) and [61]-[73] (fitness class), but in very brief terms:

12. [106]

    These matters did not create any doubt as to the honesty of the complainant, but they raised questions about her evidence that she was still the applicant’s pupil and had not turned 17 at the time they first had sexual intercourse. Both at the trial and on the appeal, the applicant placed substantial reliance on these matters and their connection to the complainant’s evidence as to the timing of the first occasion of sexual intercourse. While I do not accept the applicant’s arguments under grounds 1 and 2, they raise matters relevant to the resolution of ground 4.

13. [107]

    The respondent relied on the cumulative impact of other parts of the evidence which were said to support the complainant’s recollection as to when the sexual relationship commenced. The trial Judge found that these amounted to “a large amount of reliable and independent evidence” and set out those in nine dot points at page 71 of her judgment. Stern JA has set out these matters at [74] and enumerated them from (1) to (9) and I will adopt those numbers. I also adopt her Honour’s pseudonyms in relation to those witnesses to whom the provisions in s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) apply.

14. [108]

    The evidence of Witness A (1), Witness B (3), Witness C (4) and Witness D (5), which was independent of the complainant, shows that at the time the witnesses’ observations were made, the relationship between the complainant and the applicant was very close, furtive and included physical contact or near physical contact of an intimate or romantic kind. However, each of these witnesses was providing evidence based on their memory of events that occurred more than 40 years earlier and, to varying degrees, with knowledge of the things that transpired in the decade afterwards, by which I mean the disappearance of Mrs Dawson, the marriage of the complainant and the applicant, and the substantial publicity that developed especially around a podcast called “The Teacher’s Pet” in 2018.

15. [109]

    The evidence of Witness D (5) was the most cogent in terms of the timing of events. She knew the complainant and was in her year at school. Witness D left the high school “at some point during year 11”, that is in 1980. In her evidence in chief, she said she saw the applicant and the complainant not far from the entrance to the basketball stadium, near the carpark, and they were “very close, and, yeah, they were touching each other”. Her impression “upon reflection as an adult now” was that “it looked very much … as an intimate relationship”. In cross-examination, Witness D acknowledged that she listened to a podcast about Mrs Dawson’s disappearance “as it was dropping” in 2018 and spoke to the police in 2019. She agreed she did not tell the police that she saw the couple touching each other. However, she did record in her statement that she saw the pair together with the applicant “standing in front of her between her legs facing her … they were intimately close to each other.” Witness D agreed she had not seen the pair “straddling each other” but, when challenged about the precise details asked rhetorically “like, why wouldn’t they be touching?”.

16. [110]

    Witness B (3) was in Years 11 and 12 with the complainant. She gave evidence that she saw the complainant sitting in the applicant’s lap in the applicant’s office, that the complainant would spend many recesses in that office and that, towards the end of Year 11, the complainant told her that the applicant had proposed marriage to her. She was asked about “time markers or reference points” which led her to say she first spoke to the complainant about the applicant, and she gave the following answer:

17. [111]

    Asked about which month this occurred she said “autumn of that year, when it started getting colder. So let’s say March, April.” She gave evidence that the frequency of the visits to the staff room increased as the year progressed. There was cross-examination about the accuracy of Witness B’s evidence as to timing, and she was taken to a statement she made on 15 November 2018 where she said:

18. [112]

    This possible inconsistency was reconciled by the witness saying, “the observation was in Year 11” but the visit to the principal “may have been Year 12”. She said, “when I made that statement years ago, I wasn’t sure, but now that I’ve had time to reflect and think about it.”

19. [113]

    Witness C, who gave evidence of seeing the complainant sitting on the applicant’s desk with the teacher standing between her legs, was challenged about timing. Witness C was in Year 9 in 1980 and left the school in Year 11 (1982). In her first statement to police on 19 November 2018, she said the incident happened “one Tuesday when I was in year 10, so in 1980”. However, the fact was that she was in Year 10 in 1981. Witness C made a second statement to correct this error and said in the second statement that she was in Year 9 when the incident happened. She did not agree that her memory about which year at school she was in was likely to be more accurate than her memory of the calendar year.

20. [114]

    The foregoing analysis is not calculated to, and does not, impeach the honesty of their testimony. Nor does it serve to gainsay the trial Judge’s finding that the evidence they gave was honestly given. However, it highlights the difficulties for witnesses attempting to provide a reliable account of things that occurred more than four decades earlier. The things they saw would no doubt have formed a strong impression on them. However, distinguishing between 1980 and 1981 when being asked about the events in 2018-2019 (when statements were taken) and 2023 (when they gave evidence) is far more difficult and prone to unreliability.

21. [115]

    Witness B’s evidence that she saw the things in the staff room or office in autumn of 1980 did not really fit with the prosecution timeline of events if the first count of sexual intercourse did not occur until far later in the year. Witness C’s initial account – that it happened when she was in Year 10 – was consistent with the applicant’s timeline, and contrary to that of the prosecution. It was put to the complainant “things changed in 1981 and that there were rare occasions in 1981 where kissing or touching occurred in that office”.

22. [116]

    Accepting the trial Judge’s findings, set out at [41] by Stern JA, Witness A’s evidence did not advance the prosecution case because it was as consistent with the applicant’s growing infatuation with the complainant as it was with sexual intercourse having occurred. Witness A’s evidence of the timing of the incident was not specific and based around when he thought he got a driver’s licence.

23. [117]

    The issue of timing does not apply to the cards and notes that became Ex 3, 4 and 5. The Christmas card from December 1980 and the 17th birthday card from February 1981 include expressions of love and physical and emotional attraction. However, like Witness A’s evidence those are as consistent with a growing infatuation or the incipient stages of a romantic relationship as they are with sexual intercourse having occurred.

24. [118]

    I turn to the evidence of “the incident” said to have occurred between the end of the school year in 1980 and the beginning of the first term in 1981. The complainant’s evidence of this incident was taken in closed court and the details were redacted in the primary judgment. There are non-publication orders over the details which Stern JA has summarised briefly at [74](7). The incident was in two parts, [redacted]. As to when the incident occurred the complainant said, “I think it was during the holidays, the school holidays; December or early January of 1981.” She gave evidence that the applicant’s brother was present during one of the discussions around that incident.

25. [119]

    Counsel for the applicant at trial put the following quite precise propositions to the complainant:

26. [120]

    Counsel also cross-examined one of the investigators, Detective Beacroft, about investigations and attempts to find evidence supporting the occurrence of this incident in 1980 or 1981. Again, in brief and (on my part) deliberately opaque terms, that cross-examination included:

27. [121]

    I agree with the trial Judge and with Stern JA that there were readily understandable reasons why the complainant may not have mentioned the incident in her earlier statements and testimony and take into account the trial Judge’s findings on this issue.

28. [122]

    However, again, and in the context of this case, the real issue related to making findings about the timing of the events. As noted above, it was put to the complainant that the second, more significant, part of the incident was not arranged by the applicant “in December 1980 or January 1981”. It was not put to her that the second part of the incident did not occur at all.

29. [123]

    As I said at the outset, I am unable to reach the conclusion beyond reasonable doubt that the applicant and complainant had sexual intercourse before 12 December 1980.

30. [124]

    The complainant’s own evidence, honestly given, was based on a sequence of events as to timing that did not withstand scrutiny in certain respects and which was contradicted, or called into question, by other evidence in the case. In this respect, I have acted on and reached the same conclusions as the trial Judge.

31. [125]

    The body of supporting evidence was deficient in two ways.

32. [126]

    First, there were significant issues about the timing of the observations made by the witnesses, each of whom were no doubt doing their best to be accurate four decades after the events in question. However, the effluxion of time created difficulties for each one of them. In relation to observations as to the close, and at times, furtive contact between the applicant and complainant, I am unable to conclude that this proved to the requisite standard, either by itself or in combination with the other evidence in the case, that sexual intercourse had occurred on or before 12 December 1980.

33. [127]

    Secondly, accepted at its highest, the evidence proved intimacy, physical attraction, the development of a forbidden love and, perhaps on the applicant’s part, an infatuation with the complainant. It did not establish beyond reasonable doubt that sexual intercourse took place. It raised suspicion, perhaps a grave suspicion, but it did not establish to the exclusion of all other possible inferences, that sexual intercourse took place in 1980.

34. [128]

    The evidence concerning “the incident” provided a very strong example of the actual forensic disadvantage suffered by an accused person who faces trial so long after the event. The passage of time meant that it could not be established one way or another whether [redacted]. As the trial Judge directed herself:

35. [129]

    These legal directions (which, with respect, are impeccable) are of particular significance in this case because, first, the delay is of such magnitude and, secondly, because the issue in dispute is so fine and narrow and concerns a finding that an event occurred before a very specific point in time. I have given these directions as to the forensic disadvantage considerable weight in my approach to the evidence.

36. [130]

    In M v The Queen (1994) 181 CLR 487; [1994] HCA 63, Mason CJ, Deane Dawson and Toohey JJ said at 495:

37. [131]

    Their Honours also said at 494:

38. [132]

    In Dansie v The Queen, the Court referred at [12] to M v The Queen as providing “authoritative guidance” which “has not diminished with time”. At [15] the Court said:

39. [133]

    In deference to the experience of the trial Judge, the fastidiousness of her Honour’s judgment, and the contrary views taken by Stern JA and McNaughton J, I have examined and re-examined the evidence, my reasoning process and conclusions. Having done so, I continue to harbour the feelings of anxiety and discomfort experienced by Sully J in this Court in M v The Queen.

40. [134]

    I have considered the advantage enjoyed by the trial Judge in seeing the complainant and the other witnesses give evidence at the trial. I have deferred to her Honour’s findings as to the honesty of the witnesses and acted on some of the findings relating to the reliability of parts of the evidence. However, when it comes to the witnesses’ accuracy and reliability as to the timing of events and other fine detail, the doubts I am experiencing cannot be resolved by the fact that the trial Judge saw and heard the evidence given in the trial court. Similarly, in drawing inferences from the direct evidence, and deciding whether all inferences consistent with innocence have been excluded, the trial court has no discernible advantage over this Court in considering the whole of the record of the trial: cf Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 at [52], [55]. The use of this language and the reference to Coughlan v The Queen is not to convert a direct evidence case into a circumstantial case (cf Stern JA at [25]). It is employed to emphasise that it was essential for the prosecution to prove beyond reasonable doubt that the sexual intercourse occurred on or before 12 December 1980, which is to say it had to exclude the reasonable possibility that it occurred after that date. The way in which the evidence adduced in support of the complainant’s direct evidence was able to do this was by way of circumstantial reasoning.

41. [135]

    The reasonable doubt I entertain as to the timing of the first act of sexual intercourse cannot be resolved by reference to the trial Judge’s advantage in seeing and hearing the witnesses give their evidence.

42. [136]

    For those reasons, I would make the following orders:

    1. (1)

       Extend time to file the notice of appeal.

    2. (2)

       Grant leave to appeal.

    3. (3)

       Allow the appeal.

    4. (4)

       Quash the conviction and enter a verdict of not guilty.

43. [137]

    McNAUGHTON J: I have had the benefit of reading the draft judgment of Stern JA. I agree for the reasons provided by her Honour that the first two grounds should be rejected. In relation to ground 3, I am of the view, having reviewed the record of the trial for myself, and for the reasons given by Stern JA, that it was well open to the trial judge to be satisfied beyond reasonable doubt that the accused was guilty. I agree with the orders proposed by Stern JA.