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2
District Court 8 March 2018

R v MM

[2018] NSWDC 181

Sexual offences
CRIMINAL LAW JUDGE ALONE DETERMINATION CHILD SEXUAL ASSAULT SIX COMPLAINANTS AND MULTIPLE CHARGES 77 COUNTS

Citation: R v MM [2018] NSWDC 181
Court: District Court of New South Wales
Date: 8 March 2018
Judge: Sutherland SC DCJ

Background

The accused was tried in the District Court at Wollongong on a 77-count indictment arising from alleged sexual offences against six child complainants. The accused, who stood in a position of familial trust as a grandfather and step-grandfather to some of the complainants, faced charges covering a wide range of conduct including sexual assault, indecent assault, production and possession of child abuse material, supply of drugs for grooming purposes, and blackmail. The offending was alleged to have been ongoing, and some assaults were filmed.

The accused elected for a judge-alone trial. Because of the graphic nature of video recordings tendered in evidence, the Crown consented to that election, removing any judicial discretion to refuse it. The trial ran from 29 January 2018 to 19 February 2018, with a further hearing on 27 February 2018 to address defects in the indictment and clarify the contents of a tendered DVD exhibit.

The original indictment contained a considerable number of defects. The Crown was granted leave to amend the indictment in several respects, with the judge delivering separate reasons on 27 February 2018 addressing those amendments. Some defects remained even in the amended form.

  • Whether the Crown had proved each element of the various charges beyond reasonable doubt across 77 counts and six complainants
  • How to apply concepts of consent to charges involving children who are legally below the age of consent
  • Whether certain conduct constituted an indecent assault committed "with" a complainant, as charged, or merely "towards" a complainant (a legally distinct category)
  • Whether guilty verdicts on the charges as laid were available, or whether only statutory alternative offences under the Crimes Act 1900 were established on the evidence
  • The proper approach to judge-alone deliberation, including the drawing of inferences from direct and circumstantial evidence, and the application of the standard of proof

Decision

Sutherland SC DCJ applied the standard principles applicable to a judge-alone trial under s 133 of the Criminal Procedure Act 1986, as elaborated by the High Court in AK v Western Australia and Fleming v The Queen. His Honour reminded himself throughout that the Crown bore the burden of proving each element of every charge beyond reasonable doubt, that the accused bore no onus, and that findings of fact could only be drawn from the evidence adduced.

The accused gave evidence at trial. His Honour treated that evidence in accordance with orthodox principles: the accused's exculpatory explanations did not shift any onus, and it remained for the Crown to negative those explanations beyond reasonable doubt.

On the majority of counts, the Crown discharged that burden and guilty verdicts were returned. On several counts (6, 7, 9, 10, 11, 14, 15, 25), the outcomes were more nuanced. For counts 9, 10, and 11, the accused was found not guilty of the offence as charged but guilty of a statutory alternative under s 66C(2) of the Crimes Act 1900. For Count 14, a guilty verdict was returned under s 61O(1) rather than the offence as charged. Counts 6, 15, and 25 resulted in outright not guilty verdicts.

A notable point of legal analysis arose in relation to Count 7, which concerned an alleged indecent assault. His Honour found as a matter of fact that the accused had incited an act of indecency, but concluded that a request to send a photographic image to the accused constituted an act "towards" him rather than "with" him. Because the charge required the act to be "with" the accused, and following authorities including R v Chonka, Eades v DPP (NSW), and R v Nelson, a not guilty verdict was returned on that count.

Orders Made

  • Guilty verdicts entered on 70 counts (Counts 1–5, 8, 12–14, 16–24, 26–77, and statutory alternatives on Counts 9–11)
  • Not guilty verdicts entered on Counts 6, 7, 15, and 25
  • Matter adjourned to 8 June 2018 for sentencing

Key Takeaways

  • The District Court confirmed the well-established distinction between indecent acts committed "with" a complainant and those committed "towards" a complainant. Where the conduct amounted to incitement to send an image but lacked the requisite physical or interactive mutuality, a charge framed as an act "with" the accused could not be sustained.
  • Where the evidence supported a statutory alternative offence rather than the charge as laid, the District Court returned verdicts on those alternatives under ss 66C(2) and 61O(1) of the Crimes Act 1900, rather than acquitting entirely.
  • Under s 133 of the Criminal Procedure Act 1986, a judge sitting alone must articulate the principles of law applied, the findings of fact relied upon, and the resolution of all issues of law and fact. This decision illustrates how that obligation operates across a high-volume, multi-complainant indictment.
  • Defects in an indictment, even significant ones, do not automatically preclude a trial proceeding. The Crown may seek and be granted leave to amend, and where defects remain uncorrected they require the trial judge to grapple with them in the course of deliberation.
  • The introduction of consent-related legal concepts into charges involving complainants who are below the statutory age of consent created particular complexity in this matter, requiring careful analysis of each count individually.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 133
- Crimes Act 1900 (NSW), ss 61O(1), 66C(2), 578A
- Drug (Misuse and Trafficking) Act 1985 (NSW)

Cases
- AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
- Fleming v The Queen (1998) 197 CLR 250
- Eades v DPP (NSW) [2010] NSWCCA 241; (2010) 77 NSWLR 173
- McGrath v R [2010] NSWCCA 48; (2010) 199 A Crim R 527
- R v Chonka [2000] NSWCCA 466
- R v Manson (NSWCCA, 17 February 1993, unreported)
- R v Nelson [2016] NSWCCA 130
- R v Orsos (1997) 95 A Crim R 457
- R v Page (NSWCCA, 25 November 1991, unreported)