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District Court 15 September 2016

DH v R

[2016] NSWDC 214

Sexual offencesAssault & violence
ASSAULT WITH ACT OF INDECENCY

Citation: DH v R [2016] NSWDC 214
Court: District Court of New South Wales
Date: 15 September 2016
Judge: Mahony SC DCJ

Background

The appellant had been convicted in the Local Court of assault with act of indecency under s 61L of the Crimes Act 1900. The alleged offence occurred on ANZAC Day 2014 at a hotel beer garden in Balmain, where a game of two-up was taking place in a crowded courtyard. The complainant, who was celebrating her twenty-first birthday, alleged she was touched on the buttocks three times in quick succession, with the third incident involving the appellant placing his hand underneath her skirt and grabbing her upper thigh near the buttock.

The appellant, a member of the defence forces, conceded at trial that he had placed an open hand on the complainant's buttocks on the first two occasions. He denied any contact on the third occasion, both in his police interview and under oath at the hearing. The Local Court magistrate convicted him, and he appealed to the District Court.

The appellant also faced a separate assault charge arising from the same day involving a different complainant. That charge was dismissed by the magistrate and was not before the District Court on appeal.

  • Whether the appeal court was required to identify a specific error by the magistrate, or whether it was entitled to form its own view of the facts on the record
  • Whether the Crown had proved beyond reasonable doubt the elements of the offence as particularised, specifically the third incident of contact under the complainant's skirt
  • What weight should be given to inconsistencies in the complaint evidence and to the appellant's good character evidence

Decision

The District Court conducted the appeal as a rehearing on the transcript of the Local Court proceedings. Applying Charara v R [2006] NSWCCA 244, Mahony SC DCJ acknowledged the magistrate's advantage in having seen and heard the witnesses, and proceeded on the basis that the decision in AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 governs the applicable approach, though he noted the Court of Appeal's divided views on whether error by the magistrate is a necessary precondition to intervention.

The charge as particularised turned on the third incident only. The court accepted the complainant as a credible witness and acknowledged that contact between the appellant's hand and the complainant's right buttock was established by the evidence, including the appellant's own admissions regarding the first two occasions. A photograph in evidence showed a red mark in the relevant area, though no medical evidence established its cause or timing.

The court found, however, that the complaint evidence contained inconsistencies that introduced doubt. Combined with the weight properly afforded to the appellant's good character evidence, including unchallenged testimony from multiple witnesses about his respectful attitude toward women in both social and professional contexts, the court was not satisfied beyond reasonable doubt that the third incident occurred as particularised.

On that basis, the appeal was upheld and the conviction set aside.

Orders Made

  • The appeal is upheld.
  • The orders made by the learned magistrate on 14 December 2015 are set aside.
  • The exhibits are returned.

Key Takeaways

  • The District Court confirmed that a conviction under s 61L of the Crimes Act 1900 requires proof beyond reasonable doubt of both an assault and an accompanying act of indecency on or in the presence of the victim, occurring before, at the time of, or immediately after the assault.
  • An act of indecency under s 61L is defined by reference to what right-minded persons would regard as contrary to community standards of decency; proof of a purpose of sexual gratification is not required.
  • Where particulars define the specific conduct alleged, the Crown must prove that particularised conduct to the requisite standard; admissions going only to uncharged conduct do not fill the gap.
  • Inconsistencies in complaint evidence, while not necessarily fatal to a prosecution, can contribute to reasonable doubt when assessed alongside other evidence, including uncontradicted good character evidence.
  • Good character evidence, particularly unchallenged testimony as to an accused's specific attitude toward the class of persons said to be at risk, is a legitimate consideration in the overall assessment of whether the prosecution has met its burden.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61L
- Crimes (Appeal and Review) Act 2001 (NSW), s 18
- Criminal Procedure Act 1986 (NSW)

Cases
- Charara v R [2006] NSWCCA 244
- AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
- R v Telfer (2004) 142 A Crim R 132