Citation: R v DX [2011] NSWDC 98
Court: District Court of New South Wales
Date: 21 July 2011
Judge: Cogswell SC DCJ
Background
The offender, referred to as DX, pleaded guilty to two indecency offences on indictment, together with further charges listed for a Form 1 (a mechanism allowing additional charges to be taken into account on sentence without separate conviction). The offences involved acts of indecency committed against two of his nieces more than thirty years before the proceedings. The families had been closely connected throughout the 1970s and 1980s.
DX came to the attention of police through his own actions. After joining a church and consulting pastoral and psychological support, he presented himself to police and confessed. He provided two written statements and participated in a recorded interview. When police made contact with one of the complainants, it became apparent that her account of what had occurred was more serious than DX's own recollection.
The sentencing hearing could not proceed until the court resolved three factual disputes. Two concerned the gravity of specific conduct: whether DX had inserted his penis into his niece's mouth during one incident, and whether he had masturbated in the presence of both nieces during a series of exposure incidents at the family home.
Legal Issues
- Whether uncharged acts said to demonstrate a tendency should be taken into account in making findings of fact for sentencing purposes
- Whether DX had inserted his penis into the mouth of the first niece (CY) during an incident at a remote location, or whether the conduct extended only as far as DX admitted
- Whether DX had masturbated in the presence of both nieces during the bedroom exposure incidents, or whether he had merely exposed himself without masturbation, as he claimed
Decision
On the tendency issue, Cogswell SC DCJ indicated at the outset that he would not take into account uncharged acts as support for the factual findings sought by the prosecution. This issue was therefore resolved in the offender's favour without detailed reasoning in the published text.
On the credibility of the complainants, the defence argued that CY and her sister SZ were unreliable witnesses, not untruthful but affected by mistaken recall or innocent reconstruction. The court examined the specific inconsistencies raised, including peripheral matters such as the colour of a car and the layout of a room, and found none of them capable of undermining the complainants' reliability as to the central events. Both CY and SZ were found to be impressive, articulate and unshaken in cross-examination.
On DX's own evidence, the court found that while he was not deliberately lying, his recollection was gravely unreliable. His memory was sparse and faded. His own written statements contained inconsistencies with his oral evidence. Critically, when the complainants' accounts were put to him, he repeatedly acknowledged they could be true, and he conceded under cross-examination that he may have been deceiving himself about what had occurred. The court found it likely that DX had, through a process of psychological self-protection, reconstructed events in a less culpable form than what actually happened.
The court concluded there was no reasonable possibility that DX's recollections of the specific disputed events could be true. It was satisfied beyond reasonable doubt that CY's account of oral penetration was accurate, and that SZ's description of DX manipulating his penis in the bedroom amounted to masturbation in the presence of both girls.
Orders Made
No orders were made in this decision.
Key Takeaways
- The District Court declined to take uncharged acts into account on a tendency basis when making contested findings of fact at a disputed facts hearing on sentence.
- Where an offender's memory is acknowledged to be faded, his accounts contain internal inconsistencies, and he concedes under cross-examination that complainants' versions could be true, a court may find his recollection unreliable without concluding he is deliberately lying.
- A finding of self-deception, as distinct from deliberate untruth, can form a legitimate basis for rejecting an offender's evidence where the surrounding circumstances support that conclusion.
- Peripheral inconsistencies in a complainant's account, such as errors about collateral details that had no particular salience at the time, do not necessarily undermine the reliability of that complainant's account of central events.
- The standard applied to contested factual issues at sentence remains proof beyond reasonable doubt in the prosecution's favour: the court must be satisfied to that standard before it can find a more serious version of the facts.
Legislation and Cases Referenced
No legislation or cases were cited in the judgment text or metadata. The decision turned on an assessment of witness credibility and the application of the beyond reasonable doubt standard to disputed facts at sentence.