Australia, July 7 -- New South Wales Land and Environment Court issued text of the following judgement on June 6:

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

3) The verdict of guilty was unreasonable (ground 3).

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. 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. 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.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19734421b217716edb08715d)

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