Citation: Director of Public Prosecutions (NSW) v SA [2018] NSWLC 27
Court: Local Court of New South Wales
Date: 10 August 2018
Judge(s): Magistrate Tsavdaridis
Background
The defendant was the stepfather of a complainant aged under 16. The Crown alleged that on or about 4 October 2017, the defendant touched the complainant on her vagina, inside her pyjama pants, while she lay asleep on an upstairs lounge at the family home. The complainant's 15-year-old boyfriend was also staying at the home that night.
The defendant did not deny being present near the complainant. His position at trial was that any contact was accidental rather than deliberate. The Crown countered that the defendant had developed an unusual and obsessive interest in the complainant leading up to the incident, that he knew she was asleep and incapable of consenting, and that his conduct and subsequent statements amounted to an admission of the unlawful act.
The matter was heard as a summary prosecution in the Local Court. Because both the complainant and her boyfriend were under 16, the court implemented a range of statutory protections: hearings in camera, evidence-in-chief by audio-visual recording, and cross-examination via audio-visual link from a remote witness room with a support person present.
Legal Issues
- Whether cautionary criminal trial directions (including jury-equivalent directions on onus and standard of proof) apply to a magistrate sitting alone in a summary prosecution
- Whether the Crown proved beyond reasonable doubt that the defendant's act was deliberate rather than accidental
- Whether the touching carried a sexual connotation sufficient to satisfy the "indecency" element of the charge
- Whether the Crown proved the defendant knew the complainant was not consenting
- Whether the defendant's post-incident conduct, including admissions and text message exchanges, supported an inference of guilt
Decision
Magistrate Tsavdaridis confirmed that cautionary criminal trial directions apply equally to a magistrate sitting alone as they do in a jury trial, following Fleming v R (1998) 197 CLR 250. The magistrate accordingly directed herself on the standard of proof (beyond reasonable doubt), the onus of proof (resting entirely with the Crown from start to finish), and the requirement to consider all evidence as a whole rather than in isolation.
On the central factual question, the magistrate rejected the defendant's account that any contact was accidental. The defendant's evidence was found to be unreliable and lacking in credibility, with the magistrate noting a progressive loss of confidence in his account over the course of the hearing. The complainant's evidence was accepted. The magistrate found beyond reasonable doubt that the defendant deliberately placed one hand and fingers down the front of the complainant's pyjama pants onto the exterior of her vagina while she was asleep, withdrawing his hand immediately when she woke.
The magistrate found the act clearly indecent: touching the genitalia of a female carries a clear sexual connotation on its face, satisfying that element without any further need to prove the defendant's subjective intention to obtain sexual gratification. The defendant's post-incident conduct, including an admission when confronted by the complainant, the manner in which he engaged with text messages urging him to tell the complainant's mother, and the implausibility of his account of the confrontation, were treated as consistent with a consciousness of guilt. The complainant's immediate disclosure to her boyfriend also supported the Crown's case.
The magistrate was satisfied beyond reasonable doubt that all elements of aggravated indecent assault under s 61M(2) of the Crimes Act 1900 (NSW) had been established: intentional assault, indecency, absence of consent, and the defendant's knowledge of that absence of consent.
Orders Made
- The defendant was found guilty of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW) (Sequence 1).
Key Takeaways
- A Local Court magistrate sitting alone in a summary criminal prosecution must apply the same cautionary trial directions as would apply in a jury trial, including directions on onus and standard of proof, following Fleming v R.
- Under s 61M(2) of the Crimes Act 1900 (NSW), an assault on a person under 16 years of age in circumstances involving an act of indecency carries a maximum penalty of 10 years' imprisonment, and consent is not a defence by operation of s 77.
- Where a touching clearly involves the genitalia, the "indecency" element is established by the nature of the act itself without additional proof of the defendant's intention to obtain sexual gratification, as confirmed by Harkin v R.
- Post-incident conduct, including admissions made when confronted and implausible explanations given in evidence, may form part of a circumstantial case from which consciousness of guilt can be inferred.
- Statutory protections under the Criminal Procedure Act 1986 (NSW), including audio-visual recording of evidence-in-chief and remote-link cross-examination, apply in summary proceedings where the complainant or witness is a vulnerable person as defined by s 306M(1).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW): ss 61M(2), 61HA, 77, 428D
- Criminal Procedure Act 1986 (NSW): ss 291, 306M(1), 306S(1)(a), 306U(1), 306ZB
- Evidence Act 1995 (NSW): ss 12, 13, 141(1) and (2)
Cases
- Attwood v R (1960) 102 CLR 353; [1960] HCA 15
- Chamberlain v R (No 2) (1984) 153 CLR 521; [1984] HCA 7
- Fleming v R (1998) 197 CLR 250; [1998] HCA 68
- Harkin v R (1989) 38 A Crim R 296
- R v Brooks (1988) 44 NSWLR 121
- R v Ciantar (2006) 16 VR 26; [2006] VSCA 263
- R v Murphy (1985) 4 NSWLR 42
- R v Prasad (1979) 23 SASR 161
- Woolmington v DPP [1935] AC 462