Citation: R v YY No. 1 [2016] NSWDC 362
Court: District Court of New South Wales
Date: 19 October 2016
Judge: A Haesler SC DCJ
Background
The accused, the maternal grandfather of the complainant, elected to be tried by judge alone at Wollongong District Court. The Director of Public Prosecutions consented to that election. The indictment contained 13 counts of sexual offences said to have been committed against the complainant when she was aged between approximately 7 and 11 years old, across locations in Berkeley, Warrawong, and Kembla Grange.
The charges included multiple counts of indecent assault and acts of indecency under ss 61M(2) and 61O(2) of the Crimes Act 1900, and three counts of aggravated sexual intercourse with a child under authority under s 66C(2) of the same Act. One count (Count 13) involved a separate alleged incident said to have been witnessed by a school friend of the complainant.
The prosecution relied primarily on the evidence of the complainant, supported by her mother, sister, and friends. A listening device recording of a conversation between the accused and the complainant, and a recorded police interview with the accused, were also tendered. The accused did not give evidence but called family members and acquaintances from his golf club, each of whom also gave character evidence on his behalf.
Legal Issues
- Whether the prosecution proved each element of each count beyond reasonable doubt in the context of a judge-alone trial requiring exposed and transparent reasoning
- Whether the complainant's evidence was sufficiently reliable and credible, given the significant delay between the alleged offences and reporting
- Whether the defence theory of concoction or fabrication by the complainant and supporting witnesses raised a reasonable doubt
- Whether the accused's good character evidence raised a reasonable doubt
- How the accused's silence at trial and his exculpatory responses in the recorded police interview should be assessed
- Whether tendency evidence and general admissions arising from the listening device recording were properly considered
- Whether Count 10 was proved where no prosecution evidence was led beyond the accused's denial in his police interview
Decision
His Honour began by setting out the applicable legal framework in detail, as required for a judge-alone trial under s 294 of the Criminal Procedure Act 1986. He identified all relevant directions, including the presumption of innocence, the prosecution's onus of proof beyond reasonable doubt, and the need to apply cautions required by ss 144 and 165B of the Evidence Act 1995 and the principles in Longman v The Queen (1989) 169 CLR 79 concerning delay.
On the defence case of fabrication, his Honour noted that the accused bore no onus of proving concoction or establishing a motive to lie. However, having assessed all the witnesses, he found the complainant's account compelling, internally consistent, and supported by other evidence, including aspects of the accused's own conduct. The supporting witnesses' accounts withstood scrutiny and were not displaced by the suggested motives for fabrication, namely disputes over money, alleged extortion, or animosity arising from the accused's new relationship following his first wife's death.
The accused's good character was acknowledged as a genuine factor. His Honour accepted the character evidence but concluded that, when weighed against all proved facts and the strength of the complainant's evidence, it did not raise a reasonable doubt. Similarly, the possibility of concoction, while considered carefully, was not established to the point of generating any reasonable doubt.
Count 10, one of the three aggravated sexual intercourse charges, was not proved. His Honour found that no prosecution evidence had been led in respect of that count beyond the accused's own denial in his police interview, and an acquittal on that count was therefore required. On all remaining 12 counts, his Honour was satisfied beyond reasonable doubt and entered guilty verdicts.
Orders Made
- Guilty verdicts entered on Counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, and 13
- Not guilty verdict entered on Count 10 (aggravated sexual intercourse, no prosecution evidence led)
- The accused convicted on each count on which a guilty verdict was entered
- Proceedings stood over to 1 December 2016 for submissions on sentence
Key Takeaways
- In a judge-alone trial under s 294 of the Criminal Procedure Act 1986, the judge must explicitly expose the reasoning process, including all applicable legal directions and cautions, to justify each verdict reached.
- A not-guilty verdict was required on Count 10 because the prosecution led no evidence in support of that specific count beyond the accused's denial in his recorded police interview; the absence of affirmative prosecution evidence was fatal to that charge.
- Delay in reporting child sexual offences does not automatically undermine a complainant's credibility, but the court must apply the relevant caution under s 165B of the Evidence Act 1995 and Longman principles, and explain how that caution has been applied in evaluating the evidence.
- Good character evidence, while a legitimate factor in assessing whether a reasonable doubt exists, does not automatically displace strong and well-supported complainant evidence; the District Court found it did not raise doubt here when assessed against the totality of the evidence.
- Where a fabrication defence is run, the accused bears no onus of proving that witnesses lied or establishing their motive to do so; the question remains only whether the prosecution's evidence, properly assessed, proves guilt beyond reasonable doubt.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW): ss 61M(2), 61O(2), 66C(2), 61H(2)
- Criminal Procedure Act 1986 (NSW): s 294
- Evidence Act 1995 (NSW): ss 144, 165B
Cases
- Longman v The Queen (1989) 169 CLR 79
- IMM v The Queen [2016] HCA 14
- Coombes v Roads and Traffic Authority & Ors [2006] NSWCA 229