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District Court 3 June 2014

R v Bennett

[2014] NSWDC 61

Sexual offences
CRIMINAL LAW VERDICT AND JUDGMENT JUDGE ALONE TRIAL SEXUAL ASSAULT COMPLAINT

Citation: R v Bennett [2014] NSWDC 61
Court: District Court of New South Wales
Date: 3 June 2014
Judge: Berman SC DCJ

Background

The accused, a police officer, faced a single charge of sexual intercourse without consent allegedly committed on 11 April 2011. He had been in a relationship with the complainant, who was at the time estranged from her husband. The accused elected a judge-alone trial, to which the Crown consented.

The central factual dispute concerned an act of fellatio that both parties agreed occurred at the accused's home on the night in question. The accused maintained the act was consensual. The complainant gave evidence that she said "no" and was forced.

The relationship had been fraught with tension about fidelity. Before the accused departed for a Vietnam holiday, the complainant had pressed him to remain faithful. On his return, she confronted him at the airport with Ms Seaburn and expressed strong disbelief at his denials of infidelity. The alleged assault occurred later that same evening.

  • Whether the Crown proved beyond reasonable doubt that the sexual intercourse occurred without the complainant's consent.
  • Whether the complainant's evidence was sufficiently reliable, examined against the whole of the evidence including text messages and post-incident conduct, to satisfy the required standard of proof.
  • How the court should approach demeanour evidence and the assessment of credibility in a judge-alone trial.

Decision

Berman SC DCJ applied the standard criminal directions he would have given to a jury, including the requirement that guilt be proved beyond reasonable doubt and that the Crown's case be assessed without sympathy or emotion toward either party. He noted that demeanour in the witness box is often an unreliable guide to truthfulness, and that the accused's unusual presentation in evidence did not, of itself, indicate dishonesty.

The Crown's case rested almost entirely on the complainant's evidence. His Honour examined that evidence carefully, including a large volume of text messages sent before, during, and after the accused's Vietnam holiday.

The critical finding concerned the complainant's conduct on the day of the alleged assault. Despite her expressed belief that the accused had been unfaithful while overseas, she drove to Sydney to meet him at the airport, spent money on vitamins and dinner for him, and remained in his company throughout the evening. His Honour found this conduct difficult to reconcile with the complainant's claimed state of mind, particularly her asserted certainty about his infidelity.

Further, within 42 minutes of receiving the accused's text message confessing infidelity ("I wasn't good in Nam"), the complainant sent a conciliatory message to her estranged husband seeking to talk. His Honour found this dramatic shift in behaviour tended to suggest the complainant had not, in fact, held a settled belief in the accused's infidelity before receiving that confession. This was directly relevant to the likelihood of consent to sexual activity earlier that evening. Taken together, these matters left the court with a reasonable doubt as to guilt, and the accused was found not guilty.

Orders Made

• The accused is found not guilty.

Key Takeaways

  • In a judge-alone criminal trial, the same principles that would govern a jury apply: the Crown must prove guilt beyond reasonable doubt, and the assessment of evidence must be free from emotion or sympathy for either party.
  • Post-incident conduct, including text messages sent in the hours immediately following an alleged offence, can be highly probative when assessing the credibility of a complainant's account.
  • Where a Crown case rests almost entirely on a complainant's evidence, the court must scrutinise that evidence with particular care before the requisite standard of proof can be met.
  • Demeanour in the witness box is treated with caution as a standalone indicator of truthfulness, both for complainants and accused persons.
  • The District Court's analysis of the complainant's behaviour on the day of the alleged assault illustrates that apparent inconsistencies between a witness's claimed beliefs and their contemporaneous conduct can ground a reasonable doubt, even where the complaint itself was made consistently and on multiple occasions.

Legislation and Cases Referenced

No legislation or cases were cited in the judgment or the provided metadata.