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District Court 23 May 2019

Crossgrove (A Pseudonym) v R

[2019] NSWDC 424

Sexual offencesAssault & violence
CRIME ALL GROUNDS APPEAL AGGRAVATED INDECENT ASSAULT DENTIST ASSAULT OF DENTAL ASSISTANT ATTEMPTED KISS SLAP ON BACKSIDE

Citation: Crossgrove (A Pseudonym) v R [2019] NSWDC 424
Court: District Court of New South Wales
Date: 23 May 2019
Judge: P Taylor SC DCJ

Background

The appellant, a dentist and sole director of a dental practice, was convicted in the Local Court of two charges of aggravated indecent assault and one charge of common assault against a 19-year-old dental assistant who worked at his practice. The aggravating element in both indecent assault charges was the appellant's position of authority over the complainant, which he did not dispute.

The three incidents involved an attempted kiss and physical embrace in a small office, a slap on the complainant's backside, and grabbing her shoulder. The appellant denied the events occurred as described by the complainant.

The appellant appealed all three convictions to the District Court, which conducted a rehearing on the evidence from the Local Court proceedings.

  • Whether the District Court, conducting a rehearing on the Local Court transcript, was satisfied beyond reasonable doubt of the appellant's guilt on each charge
  • Whether the Magistrate's credit findings in favour of the complainant should be disturbed on appeal
  • Whether text messages sent by the appellant to the complainant and another young female dental assistant constituted admissible tendency evidence under ss 97 and 101 of the Evidence Act 1995, and whether that tendency evidence had significant probative value
  • Whether prior representations in the complainant's statement were admissible under s 66 of the Evidence Act 1995 as being "fresh in the memory"

Decision

The District Court approached the appeal as a rehearing on the Local Court evidence, forming its own view of the facts while giving appropriate weight to the Magistrate's advantage in seeing and hearing witnesses directly. The Court applied the principle from Fox v Percy (2003) 214 CLR 118 that an appellate court may not lightly displace credibility findings made by a tribunal that observed witnesses give evidence.

On the tendency evidence question, the Court considered text messages sent by the appellant to the complainant (including "Hey there spunky butt") and to another young female dental assistant, which contained messages of an intimate character. The Court held that for such texts to be admissible as tendency evidence, the probative value of the tendency must be significant under s 97, and must significantly outweigh any prejudicial effect under s 101. The Court noted that the appellant was represented by an experienced practitioner who took no objection to the texts or tendency notices at first instance, and that no real prejudicial effect was asserted on appeal. The Court assessed whether the texts, together with evidence of the charged acts, established a relevant tendency to have and act upon a sexual interest in young adult female staff.

The Court was satisfied beyond reasonable doubt that all three charges were proved. The complainant's evidence was accepted as credible, and the appellant's denials and selective memory, including his initial failure to recall a workplace supervisor telling him "You can't touch your staff like that," weighed against him.

Orders Made

  • The appeal against conviction was dismissed.

Key Takeaways

  • A District Court rehearing an appeal from the Local Court under s 11 of the Crimes (Appeal and Review) Act 2001 forms its own view of guilt on the admissible evidence but must give weight to the Magistrate's credibility assessments of witnesses observed at first instance.
  • Under s 66 of the Evidence Act 1995, prior representations in a complainant's statement are admissible as evidence of the asserted facts if made when the events were fresh in the complainant's memory; specificity about the nature and timing of acts supports that inference.
  • Tendency evidence in the form of text messages requires both significant probative value under s 97 and, under s 101, that probative value must significantly outweigh any prejudicial effect on the accused before it can be used against the accused in a criminal trial.
  • The District Court confirmed that a tendency to have a sexual interest in young adult female staff and to act on that tendency is capable of being a relevant tendency for the purposes of indecent assault charges, particularly where the charged acts themselves provide supporting conduct beyond the texts alone.
  • No objection having been taken to tendency notices or text evidence at first instance by experienced defence counsel was a factor the Court took into account when assessing admissibility on appeal.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 18, 20
- Evidence Act 1995 (NSW), ss 66, 97, 101

Cases:
- Charara v R (2006) 164 A Crim R 39; [2006] NSWCCA 244
- Eades v DPP (NSW) (2010) 77 NSWLR 173
- Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
- Johnson v Ramsden [2019] WASC 84
- McPhillamy v R (2018) 361 ALR 13; [2018] HCA 52
- R v Bauer (A Pseudonym) (2018) 359 ALR 359; [2018] HCA 40
- Société d'Avances Commerciales v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 Ll L Rep 140