Citation: Director of Public Prosecutions (NSW) v AB [2015] NSWLC 29
Court: Local Court of New South Wales
Date: 31 March 2015
Judge(s): Deputy Chief Magistrate C O'Brien
Background
The accused faced a single charge of indecent assault upon a person under the age of 16 years, contrary to s 61M(2) of the Crimes Act 1900. The alleged conduct occurred at a Grafton motel room in the early hours of 5 January 2014, during an overnight trip attended by the accused, his domestic partner, her daughter (a close friend of the complainant), and the couple's young son.
The complainant, a young girl referred to throughout the proceedings as Kylie, was sharing a queen bed with the accused's partner's daughter. The accused was sleeping on a couch nearby. Kylie alleged that the accused woke during the night, made sexually explicit verbal overtures to her, and then sat on the bed and kissed her forehead while grabbing her arm, before returning to the couch after she protested.
The accused denied the allegation. The matter proceeded over six hearing days at Coffs Harbour Local Court, with evidence from multiple witnesses and written submissions from both parties. The Deputy Chief Magistrate ultimately delivered a written judgment.
Legal Issues
- Whether the prosecution proved each element of indecent assault beyond reasonable doubt
- How the court should assess and weigh the evidence of child witnesses, particularly where it was given via electronically recorded interview
- How to treat inconsistencies in complaint evidence and context evidence
- Whether reasonable doubt arose from the complainant's account, the physical circumstances of the motel room, and the accused's evidence
Decision
The Deputy Chief Magistrate applied orthodox criminal law principles, noting that the prosecution bears the burden of proving every element of the offence beyond reasonable doubt, and that suspicion, even grave suspicion, is not a substitute for such proof. The judgment drew on the approach stated in Cubillo v The Commonwealth (2000) 174 ALR 97, confirming that a tribunal of fact may accept parts of a witness's evidence while rejecting others, and that an adverse credibility finding on a peripheral issue does not require wholesale rejection of that witness's testimony.
The court identified several compounding concerns that, taken together, prevented it from being satisfied beyond reasonable doubt. These included inconsistencies in the complaint evidence, concerns about evidence relating to bruising said to have been present on the complainant's body, and doubts arising from the physical layout of the motel room and the circumstances described by Kylie. The court found it implausible that the other occupants of the room remained asleep throughout an alleged incident involving significant physical movement and extended dialogue.
The court was unable to be satisfied as to the truthfulness and accuracy of Kylie's evidence in critical respects. Separately, the court was unable to reject the accused's evidence, even though it did not positively accept all of it. Applying Liberato v R (1985) 159 CLR 507, the court resolved that doubt in favour of the accused.
Orders Made
- The charge against the accused was dismissed.
- A copy of the reasons was to be made available to the parties from the Registrar of the Coffs Harbour Local Court.
- The parties and any other interested persons were reminded of the statutory prohibition on publication of any detail that might identify any child witness.
Key Takeaways
- Proof beyond reasonable doubt remains the governing standard in criminal proceedings in the Local Court; suspicion, however strong, cannot satisfy that threshold.
- Under the Liberato direction, where a court cannot reject a denial by an accused even without positively accepting it, the accused is entitled to an acquittal.
- A child complainant's evidence may be accepted in part and rejected in part; an adverse finding on one aspect of a witness's account does not require the court to disregard the entirety of that evidence (Cubillo v The Commonwealth).
- Inconsistencies between complaint evidence given at different times, and implausibilities arising from the physical circumstances of the alleged incident, can together create a reasonable doubt sufficient to prevent a conviction, even where the court does not positively find the complainant to have fabricated the allegation.
- Complaint evidence under s 66 of the Evidence Act 1995 requires careful scrutiny, and the court's inability to reconcile material inconsistencies in such evidence contributed directly to the outcome here.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61M(2)
- Evidence Act 1995 (NSW), ss 66, 165A
Cases:
- Cubillo v The Commonwealth (2000) 174 ALR 97
- ES v R (No 1) [2010] NSWCCA 197
- Jones v Hyde (1989) 85 ALR 23
- Liberato v R (1985) 159 CLR 507
- Papakosmas v R (1999) 196 CLR 297
- R v Murray (1987) 11 NSWLR 12
- State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588