Citation: WH v R [2011] NSWDC 112
Court: District Court of New South Wales
Date: 4 April 2011
Judge: Cogswell SC DCJ
Background
The appellant, referred to as WH, was convicted by a magistrate of indecent assault of a person under 16 years of age, contrary to section 61M(2) of the Crimes Act 1900. The alleged offence occurred on New Year's Eve at a holiday house in Ulladulla, where WH and his family were staying as guests of the child's uncle and aunt. The complainant was approximately eight years old at the time.
The child alleged that while her parents and the homeowners were briefly out after midnight, WH came to the mattress where she was lying, pulled back her blanket, and touched her vagina with his fingers. She complained to her father immediately upon his return, and the matter was reported to police that same night. WH denied any inappropriate contact, telling police he had simply straightened the child's legs and replaced her blanket after she stirred.
WH appealed his conviction to the District Court. On such an appeal, the District Court hears the matter afresh, reviewing the evidence from the Local Court proceedings and reaching its own conclusion as to whether guilt is established beyond reasonable doubt.
Legal Issues
- Whether, on a rehearing of the evidence, the prosecution had proved beyond reasonable doubt that WH committed an indecent assault on a person under 16 contrary to section 61M(2) of the Crimes Act 1900
- Whether inconsistencies in the complainant's accounts across multiple retellings undermined her credibility or reliability to a degree that raised reasonable doubt
- Whether WH's account could be rejected on the evidence before the court
Decision
Cogswell SC DCJ carefully considered the evidence of both the complainant and WH. The complainant's account was explicit and detailed, her complaints were immediate, and her demeanour changed markedly upon her parents' return. The judge found her complaints were consistent in their central assertion: that WH had placed his hand inside her clothing and touched her vagina. The judge was also struck by the account of the child gripping her father's shirt and refusing to release it until she could speak to him privately outside.
The defence argued that the case was one of word against word, that there was no corroboration, and that the complainant's account may have been the product of innocent touching being reinterpreted and elaborated through repeated questioning by family members and police. The defence further pointed to alleged inconsistencies across the complainant's various accounts.
However, the judge's ultimate conclusion turned not on doubts about the complainant, but on the absence of any basis to reject WH's account. WH had maintained a consistent denial from his first police interview through to his evidence at the Local Court hearing. The judge found no significant inconsistencies in WH's account when weighed against the other evidence, and did not regard the one inconsistency raised (about whether his wife was present in the room) as having any impact on his credibility.
Applying the fundamental principle that an accused must be acquitted if there is even a reasonable possibility that his account is true, the judge was not satisfied beyond reasonable doubt that the charge had been proved. The conviction was set aside.
Orders Made
- The appeal against conviction was allowed.
- The conviction was set aside pursuant to section 20(1)(a) of the Crimes (Appeal and Review) Act 2001.
Key Takeaways
- The District Court confirmed that on a conviction appeal from the Local Court, the District Court conducts a full rehearing on the papers and reaches its own independent verdict, rather than reviewing the magistrate's decision for error.
- A reasonable possibility that the accused's account is true is sufficient to require an acquittal, even where the complainant's evidence is otherwise compelling and consistent.
- Inconsistencies in a complainant's successive accounts do not automatically establish unreliability, particularly where the central allegation remains constant across retellings.
- No corroboration is required to convict in cases of this kind, but the absence of any evidence capable of undermining the accused's account may be decisive in a word-against-word case.
- Where an accused gives a consistent account throughout police interview and trial proceedings, and that account is not significantly damaged by cross-examination or other evidence, a court may have no proper basis to reject it.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61M(2) (indecent assault of a person under 16)
- Crimes (Appeal and Review) Act 2001 (NSW), s 20(1)(a) (power to set aside conviction on appeal)
Cases cited: No cases were cited in the judgment.