AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 23 April 2025

R v Michael Lunn

[2025] NSWDC 145

Sexual offences
CRIME JUDGE ALONE HISTORICAL CHILD SEX OFFENDING TENDENCY EVIDENCE.

Citation: R v Michael Lunn [2025] NSWDC 145
Court: District Court of New South Wales
Date: 23 April 2025
Judge(s): McGuire SC DCJ

Background

A former teacher at Vaucluse Public School faced trial on 15 counts of child sex offences alleged to have been committed against eight complainants who were students in his classes during 1982, 1983 and 1984. The complainants were children in kindergarten to Year 2 at the time of the alleged offending, aged between four and eight years old. The accused taught in a stand-alone infants school building and was, on the evidence, largely unsupervised while alone with his class.

The accused elected a judge alone trial under section 132(2) of the Criminal Procedure Act 1986, with the Crown's consent. He pleaded not guilty to all 15 counts. He did not give or call evidence at trial, instead relying on cross-examination of Crown witnesses and on denials he had made during a recorded police interview conducted in August 2022.

Earlier proceedings in 1985 against the accused involving six different complainants formed part of the background context. The Crown did not rely on the earlier complaints as tendency evidence but led evidence about those proceedings to address the defence argument that the present complainants' accounts had been contaminated by publicity surrounding them.

Legal Issues

  • Whether the Crown established beyond reasonable doubt each element of the 15 counts of child sexual offending
  • Whether the eight complainants and the tendency witness were credible and reliable, and whether their evidence had been contaminated by publicity, rumour, prior proceedings or communication among complainants
  • Whether the accused had the tendency alleged, based principally on the evidence of tendency witness JI, and what weight that tendency evidence carried
  • Whether the accused's account in his recorded police interview should be accepted or rejected
  • Whether a directed verdict of acquittal was warranted on Count 11

Decision

Credibility of complainants and witnesses

The court assessed each complainant individually and found all eight to be honest and reliable witnesses. The court found JL to be a reliable historian whose evidence had the ring of truth and was sufficiently detailed to establish reliability (at [186]). DBR was found to be candid and credible, with no evidence of financial or vengeful motivation (at [187]). ND was described as particularly impressive, intelligent and measured, not prone to embellishment (at [188]). CM was found to be highly reliable and accurate, with credibility further supported by her nauseated physical reaction on first seeing a media article about the accused in 2022 (at [189]). JB, though emotional and agitated, was found to be honest, with his demeanour and his candid concession regarding Count 11 adding to rather than detracting from his credibility (at [190]). AI, MM, and LH were each found to be accurate, honest witnesses of truth (at [191]-[193]).

Contamination and motive

The court was not satisfied that any complainant's evidence had been contaminated by rumour, publicity, or communication with other complainants. Each complainant denied discussing the detail of their allegations with others, and the court accepted those denials. The court also rejected the suggestion that financial motivation to seek compensation rendered any complainant's evidence unreliable. Several complainants had received or sought compensation through statutory schemes, but the court found that the existence of such claims did not establish false or financially motivated evidence (at [186]-[193]).

The accused's recorded interview

The court rejected the accused's account as unsatisfactory and unconvincing. The accused initially denied having children sit on his lap on the basis it would show favouritism, then later conceded he may have done so. His account that he may have accidentally touched children while tucking in their clothing was found to be unbelievable (at [196]). The court declined to find, however, that the accused had lied in the specific ways the Crown asserted, noting that his subsequent qualifications and the passage of approximately 40 years provided alternative explanations (at [197]).

Tendency evidence

The court accepted the evidence of tendency witness JI, who was in the accused's Year 1 class in 1983, finding her to be intelligent, eloquent, compelling and credible (at [194]). The court was satisfied that her evidence, combined with the evidence of the complainants on the indictment, established that the accused had the tendencies alleged. The court found that the inference that the accused possessed the relevant tendencies was the only rational inference available on the direct evidence (at [199]).

Verdicts

A directed verdict of not guilty was entered on Count 11 because JB candidly conceded he could not be certain that an act of digital anal penetration occurred on the occasion in question (at [205]-[206], [226]). The Crown did not press Count 7, which was in the alternative to Count 6. The court entered guilty verdicts on the remaining 13 counts, including findings of sexual intercourse without consent against CM (Counts 6, 8 and 9), indecent assault against all other complainants, and an indecent assault against JB involving the accused placing his penis on JB's face and mouth in a storage area beneath a school building (at [223]-[225]).

The court was satisfied in relation to each guilty verdict that the elements of the relevant offence had been proved beyond reasonable doubt. In relation to CM's counts, the court found the accused had actual knowledge of her non-consent by reason of her very young age and his failure to make any attempt to obtain consent, and noted also that reckless indifference to consent is deemed knowledge of lack of consent under the applicable law (at [217], [220], [222]).

Orders Made

  • Guilty verdicts entered on 13 of the 15 counts (see [235])
  • Directed verdict of not guilty entered on Count 11
  • Count 7 (alternative to Count 6) not considered, as the primary count was established
  • The accused convicted on each count for which a guilty verdict was entered

Key Takeaways

  • In a judge-alone trial involving multiple complainants alleging historical child sexual offending, the District Court conducted individual credibility assessments of each complainant rather than treating their evidence as a composite whole, and accepted all eight as honest and reliable witnesses despite the passage of approximately 40 years since the alleged conduct (at [186]-[193]).

  • Tendency evidence from a witness whose evidence could not be isolated to specific incidents by time or distinguishing feature was accepted as credible, with the court finding that the inability to delineate individual incidents added to, rather than detracted from, that witness's reliability (at [194], [199]).

  • A complainant's receipt of statutory compensation, or an initial motivation to pursue compensation, does not by itself establish that the complainant gave false or financially motivated evidence; the court examines all the circumstances of each complainant's motivation individually (at [186]-[193]).

  • Where a complainant offers no physical or verbal resistance to alleged sexual conduct, the absence of resistance does not alone amount to consent; the court applied the applicable statutory framework in assessing consent and the accused's knowledge of its absence for each relevant count (at [217], [220], [222]).

  • An accused's concession during a recorded police interview that he may have accidentally touched children beneath their clothing, offered as an innocent explanation for the complainants' allegations, was found to be unbelievable where the court had already rejected the accused's broader account as unsatisfactory and unconvincing (at [196]-[198]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sexual Assault) Amendment Act 1981 (NSW)
- Criminal Legislation (Amendment) Act 1992 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)

Cases
- Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 17
- Fleming v The Queen (1998) 197 CLR 250
- Harkin v R (1989) 38 A Crim R 296
- R v Manson (NSWCCA, 17 February 1993, unreported)
- R v MJR (2002) 54 NSWLR 368