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District Court 20 February 2019

Short v R

[2019] NSWDC 52

Sexual offences
CONVICTION APPEAL FROM LOCAL COURT BEYOND REASONABLE DOUBT HEARING WHETHER JIRT IS EVIDENCE EXAMINATION

Citation: Short v R [2019] NSWDC 52
Court: District Court of New South Wales
Date: 20 February 2019
Judge: Judge Robert Montgomery

Background

The appellant was convicted in the Local Court on two counts of indecent assault upon a person under 16 years of age, contrary to s 61M(2) of the Crimes Act 1900 (NSW). The complainant, referred to as Jane, was approximately ten years old at the time of the alleged offences in 2012. The appellant was the partner of Jane's mother and was living in the family home.

The Local Court magistrate found the appellant not guilty on three further counts (Counts 3, 4 and 5), which related to a different series of alleged incidents in 2014. Those acquittals rested on concerns about inconsistency in the mother's evidence. The convictions on Counts 1 and 2 were based substantially on Jane's evidence, which described the appellant touching her in the area of her vagina on two separate occasions.

The appellant appealed to the District Court. The appeal proceeded as a rehearing on the existing record, with no fresh evidence. Both parties agreed the appeal turned primarily on the evidence of Jane and the appellant in relation to Counts 1 and 2.

  • Whether the Crown proved the appellant's guilt on Counts 1 and 2 beyond reasonable doubt on a rehearing of the evidence
  • Whether the magistrate's factual findings were undermined by reliance on evidence that had been rejected at trial (questions 177 to 180 of the JIRT recording, a Joint Investigation Response Team video interview)
  • Whether the description of the touching as "rubbing" in the magistrate's judgment had an evidentiary basis, and whether its absence affected the reliability of the magistrate's overall fact-finding
  • Whether the Crown had properly put its case to the appellant in cross-examination, consistent with the rule in Browne v Dunn

Decision

The District Court found that the magistrate had, in his reserved judgment, relied on the word "rubbing" to describe the nature of the touching. However, during the appeal it emerged that the only answer in which Jane used the word "rub" came from questions 177 to 180 of the JIRT recording, which had been rejected as evidence at trial due to the grossly leading nature of the questions. That evidence had not been struck from the written transcript before the magistrate, and no other evidence described the touching as rubbing. The magistrate had therefore been led into error.

Judge Montgomery observed that this inaccuracy had the potential to undermine confidence in the magistrate's overall assessment of the evidence on the central factual issue, namely whether the touching occurred at all. The court noted that the touching was not a peripheral detail but the essential element of each count. The court accepted the general principle, drawn from R v Reed [2006] NSWCCA 314, that a complainant's reliability is rarely undermined by imprecision about surrounding detail, but held that this principle could not apply where the central act itself was described inaccurately.

The court also considered the appellant's evidence, including his denial of the allegations, his explanation of the circumstances in which he left the family home, and his evidence about sleeping arrangements. The court found that several aspects of his evidence were not adequately challenged in cross-examination, and that some of the bases upon which the magistrate found implausibility in his account were not well-founded on the evidence. The court was not satisfied that the Crown had proved the offences beyond reasonable doubt.

Orders Made

  • Appeal allowed
  • On Count 1: appellant found not guilty
  • On Count 2: appellant found not guilty
  • Convictions entered 27 July 2018 set aside
  • Sentencing orders made in the Local Court on 14 August 2018 set aside
  • Exhibits returned

Key Takeaways

  • A District Court rehearing of a Local Court conviction does not require the identification of error below; the appellate court conducts its own assessment of whether the Crown has proved guilt beyond reasonable doubt.
  • Where a magistrate's factual findings rely on a description of conduct that has no evidentiary basis (because the only supporting evidence was excluded at trial), that misdescription can undermine the reliability of the overall fact-finding on the central issue.
  • Evidence from a JIRT recording that has been rejected at trial should not remain in the written record before the decision-maker; its inadvertent retention created a significant irregularity in this case.
  • Consistency with the rule in Browne v Dunn (1893) 6 R 67 requires that matters relied upon to impugn a witness's credibility, or to support findings of implausibility, are put to that witness in cross-examination; failure to do so affected the weight available to certain findings in this case.
  • The principle from R v Reed that a complainant's reliability is not necessarily undermined by imprecision about peripheral detail does not extend to inaccurate description of the core act that forms the essential element of the offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61M(2)
- Crimes (Appeal and Review) Act 2001 (NSW), s 11
- Criminal Procedure Act 1986 (NSW), s 294

Cases
- R v Reed [2006] NSWCCA 314
- R v NZ [2005] NSWCCA 278
- DPP v Al-Zuhairi [2018] NSWCCA 151
- Browne v Dunn (1893) 6 R 67
- AL v Regina [2017] NSWCCA 34
- Charara v R [2006] NSWCCA 244
- Fox v Percy (2003) 214 CLR 118