Citation: R v Anning [2013] NSWDC 285
Court: District Court of New South Wales
Date: 18 December 2013
Judge: S Norrish QC
Background
The accused, born in December 1932, faced 14 counts of historical sexual and other offences alleged to have occurred between approximately 1975 and 1990 in the western Lake Macquarie area of New South Wales. The complainants were six males, each of whom was between approximately 11 and 15 years of age when the alleged offending commenced. All knew the accused through personal connections, including friendships with his son or through local school networks.
The charges included buggery, acts of indecency, homosexual intercourse with males under 18, bestiality, and one count of assault. The accused had previously faced a 31-count indictment at a "special hearing" in 2009 before Acting Judge Maguire, who acquitted him of 17 of those counts. The 14 surviving counts proceeded to this trial by judge alone under s 132 of the Criminal Procedure Act 1986.
The trial proceeded on the basis that evidence from each complainant could be considered for tendency purposes in relation to counts involving other complainants, and also as relationship or contextual evidence, without the court needing to rule on admissibility as a threshold matter for each piece of evidence. All evidence was heard together by consent.
Legal Issues
- Whether the Crown had proven each of the 14 counts beyond reasonable doubt in a judge-alone trial
- How to treat the significant delays in complaint, given that the alleged offences occurred decades before trial
- Whether and how tendency evidence from one complainant's allegations could support proof of guilt on counts relating to other complainants
- Whether relationship or contextual evidence could be used to explain the circumstances surrounding the alleged offending
- The reliability and credibility of witnesses whose evidence was central to counts where corroboration was limited or absent
Decision
His Honour considered the evidence of each complainant in turn, applying careful scrutiny to the delay in reporting and the circumstances explaining that delay. The court accepted that delays in complaints of child sexual abuse are often explicable by factors such as shame, fear, and the nature of the relationship between the accused and the victim. Where delays were adequately explained, the court did not treat them as significantly undermining the complainants' credibility.
In relation to tendency evidence, the court assessed whether the alleged conduct of the accused with one complainant was capable of supporting the inference that he acted in a similar way with others. The accused's alleged pattern of targeting young adolescent males in the local area and engaging in similar sexual conduct with them over a sustained period was relevant to that analysis.
The court found the accused guilty of counts 1, 2, 3, 4, 6, 7, 9, 10, and 13, covering buggery, acts of indecency, and homosexual intercourse with multiple complainants. On counts 5 and 11, his Honour was satisfied that the accused had attempted to commit the offences particularised in those counts, rather than completing them, and returned verdicts of guilty of the attempt in each case.
The accused was acquitted on counts 8, 12, and 14. In relation to count 14 (the assault allegation), the court found the complainant's evidence unsupported by independent corroboration, noted the commercial grievance between the parties at the time, and was not satisfied beyond reasonable doubt that the alleged assault had occurred. The delay in making the assault allegation was not adequately explained, distinguishing it from the delayed sexual abuse complaints.
Orders Made
• Guilty of counts 1, 2, 3, 4, 6, 7, 9, 10, and 13
• Guilty of attempting to commit the crimes particularised in counts 5 and 11
• Not guilty of counts 8, 12, and 14
Key Takeaways
- Guilty verdicts on nine counts and two attempt verdicts were returned following a judge-alone trial involving six complainants and offending alleged to span approximately 15 years.
- Delayed complaints in historical child sexual abuse proceedings do not automatically undermine witness credibility; the court assessed each delay by reference to the particular circumstances and the relationship between the complainant and the accused.
- Tendency evidence from one complainant's account was considered in assessing guilt on counts relating to other complainants, consistent with the parties' agreement that all evidence be heard together and assessed in that way.
- Where an allegation (here, the assault count) lacked independent support, was made in circumstances suggesting personal grievance, and the delay in complaint was not satisfactorily explained, the court declined to find the count proven beyond reasonable doubt.
- A conviction for attempt was available where the court was satisfied the accused had taken steps toward committing the offence particularised in a count but the evidence did not reliably establish completion of the full offence.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
- Crimes Act 1900 (NSW)
Cases:
- R v VN [2006] VSCA 111
- R v Z (2000) 3 All ER 385
- R v Howard [2005] VSCA 235
- R v Mai (1992) 26 NSWLR 371
- Giorgianni v The Queen (1985) 156 CLR 473
- Fleming v The Queen (1998) 197 CLR 250
- The Queen v Storey & Anor (1978) 140 CLR 364
- Rogers v The Queen (1994) 181 CLR 251
- R v Carroll (2002) 213 CLR 635
- R v Fletcher (2005) 156 A Crim R 308
- R v DAO [2011] NSWCCA 63
- Colby v The Queen [1999] NSWCCA 261
- BP v R [2010] NSWCCA 303
- R v Shamouil (2006) 66 NSWLR 228
- R v PWD [2010] NSWCCA 209
- DPP v Dupas [2012] VSCA 328
- R v Ford [2009] NSWCCA 306
- R v Li [2003] NSWCCA 407
- HML v The Queen (2008) 235 CLR 334
- King v The Queen (1986) 161 CLR 423