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District Court 14 May 2009

R v De Martin

[2009] NSWDC 113

Sexual offences
CRIMINAL LAW JUDGE ALONE TRIAL PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON SEXUAL OFFENCES AGGRAVATED INDECENT ASSUALT

Citation: R v De Martin [2009] NSWDC 113
Court: District Court of New South Wales
Date: 14 May 2009
Judge(s): Murrell SC DCJ

Background

The accused was a swimming coach who had developed a relationship with a young complainant and the complainant's family. The accused invited the complainant, who was approximately ten years old at the time, to his home on multiple occasions to play computer games.

Police seized a computer from the accused's home in December 2007. The computer contained an online chat log from November 2007 in which a person identified as "Matt" described, among other things, deliberately brushing his penis against the complainant's body.

The accused pleaded guilty to a charge of committing an act of indecency towards the complainant. He contested a separate charge of aggravated indecent assault, specifically the allegation that he had assaulted the complainant by rubbing his penis against him. The contested charge proceeded as a judge-alone trial before Murrell SC DCJ.

  • Whether the admission contained in the chat log was reliable beyond reasonable doubt, such that it could ground a guilty verdict on the aggravated indecent assault charge.
  • Whether tendency evidence (derived from the guilty plea, the chat log, and the police interview) was established to the required standard and, if so, what weight it could bear.
  • Whether, taken together, the tendency evidence and the chat log admission proved the charge of aggravated indecent assault beyond reasonable doubt.

Decision

The court had no difficulty identifying the accused as the author of the chat log entry attributed to "Matt," given the computer was seized from his home and his full first name is Matthew. The accused did not contest this.

On the tendency evidence, the court admitted the plea of guilty, the chat log admissions, and the complainant's police interview account of the accused exposing himself and masturbating in the complainant's presence. Without objection and no evidence to the contrary, the court was satisfied beyond reasonable doubt that this tendency evidence was true. The evidence established that the accused had a tendency to behave sexually towards the complainant and to harbour inappropriate sexual feelings about him. The court was careful to note, however, that tendency evidence is circumstantial only and cannot be used to reason that the accused is a bad person who must therefore have committed the specific offence charged.

The critical question was whether the chat log admission about brushing his penis against the complainant was reliable beyond reasonable doubt. The court gave itself a warning under section 165 of the Evidence Act 1995, noting the risk that the admission may be unreliable. The conversation took place between two individuals apparently sharing a mutual sexual interest in children, creating a real risk that the statement was bragging, exaggeration, or fantasy rather than a truthful account of events.

The court also noted that the complainant, when interviewed by police, had ample opportunity to disclose any inappropriate touching but did not do so. While embarrassment was one possible explanation, the failure to disclose was also consistent with no such touching having occurred. Taking the context of the chat log and the absence of a complaint together, the court was not satisfied beyond reasonable doubt that the admission was reliable. A verdict of not guilty was entered on the aggravated indecent assault charge.

Orders Made

  • Verdict of not guilty entered on the charge of aggravated indecent assault (assault by rubbing his penis against the complainant, the complainant being under 16 years of age).

Key Takeaways

  • A confession or admission contained in a chat log can, in principle, be sufficient on its own to ground a guilty verdict, but only where the court is satisfied beyond reasonable doubt of its reliability.
  • Where an admission is made in a context designed to provide sexual gratification through discussion of offending, such as an online chat between individuals with shared interests in children, a court may find a real risk that the statement involved bragging, exaggeration, or fantasy rather than truth.
  • Under section 165(1)(a) of the Evidence Act 1995, a court must warn itself about the potential unreliability of admission evidence when requested to do so by the accused, and must apply caution when determining both whether to accept the evidence and what weight to give it.
  • Tendency evidence, once established to the required standard, is properly treated as relevant circumstantial evidence going to whether the accused acted in accordance with that tendency on the specific occasion charged. It cannot be used to support a general inference of bad character leading to guilt.
  • The complainant's failure to disclose relevant touching during a police interview, even where embarrassment is a possible explanation, can contribute to a reasonable doubt about the reliability of an accused's own admission on the same topic.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M (aggravated indecent assault)
- Evidence Act 1995 (NSW), s 165(1)(a) and s 165(2) (unreliable evidence warning)

Cases
- McKay v R (1935) 54 CLR 1
- R v Hatfield [1999] NSWCCA 340