Citation: R v Banks (a pseudonym) [2020] NSWDC 279
Court: District Court of New South Wales
Date: 29 May 2020
Judge: Grant DCJ
Background
The accused faced seven counts on an indictment, including sexual intercourse with a child, acts of indecency, and incitement of a child to engage in sexual touching. The two complainants were young children, GB (aged 6) and AB (aged 4 or 5), who were the children of a woman with whom the accused was in a relationship. The alleged offences were said to have occurred at various locations in Coleambally and Darlington Point between August 2018 and March 2019.
The accused elected trial by judge alone and pleaded not guilty to all counts. He gave evidence, adopting the contents of his recorded police interview in which he denied all wrongdoing. The Crown's case rested substantially on the evidence of GB, supported by complaint evidence from relatives and alleged tendency evidence.
Legal Issues
- Whether the Crown proved each element of each charge beyond reasonable doubt
- Whether GB was a sufficiently honest and accurate witness to support conviction, given multiple inconsistencies in her evidence
- Whether the other acts and tendency evidence should be accepted, and if so, what use could be made of it
- Whether the complaint evidence of GS carried sufficient weight to assist the Crown's case
- Whether GB's evidence was corroborated by AB's account, or by other evidence, in relation to the counts involving AB
Decision
Counts 1 to 4 (offences against GB):
Grant DCJ identified several indicators of unreliability in GB's evidence. Her account of the accused's clothing during count 2 was inconsistent with what she had told police. She was unable to recall details she had provided in her police interview. Her motivation was also relevant: she gave evidence that she wanted her mother and the accused to separate, and that her grandfather shared that desire (at [99]-[102]). The court found that GB's grandfather, WV, had attempted to influence his daughter's (the children's mother's) evidence through a text message, and had displayed suspicious prior knowledge of the allegations, prompting what the court described as "grave disquiet" about his role (at [97]-[98]).
On count 1 (alleged fellatio in the doctor's surgery carpark), the mother's evidence that GB showed no distress and remained in the same position throughout the visit undermined the allegation. Combined with the accused's denial and good character, this raised a reasonable doubt (at [103]-[109]). The court reached similar conclusions on counts 2 and 3, finding that the accused's denials presented reasonably possible versions of events that the Crown failed to exclude beyond reasonable doubt (at [110]-[116]). Count 4 was a single-witness case with no corroborating evidence, and the accused's account was a reasonable possibility (at [117]-[121]). Acquittals were entered on all four counts.
Counts 5 to 7 (offences against AB):
GB's evidence provided the only account of sexual offences against AB. AB's own police interview did not corroborate those allegations. In particular, count 6 alleged that the accused forcibly fellated AB. The court applied common sense and found it defied reason that AB, if subjected to such a dramatically traumatic act, would have been unable to recount it, especially given she did recall lesser conduct (at [82]-[83]). In the absence of corroboration from AB, and given the accused's denial, his good character, and the implausibility of the allegation, the court was not satisfied beyond reasonable doubt on any of counts 5, 6 or 7 (at [86]-[87]).
Tendency and other acts evidence:
The Crown relied on a number of uncharged acts, including an alleged act of fellatio performed in a Melbourne bedroom shared with the complainant's mother and siblings. The court found this allegation implausible on common sense grounds, and noted it was inconsistent with the tendency the Crown was asserting, namely that the accused acted sexually towards GB only when she was alone with him (at [68], [74]). The court preferred the evidence of the mother, TV, over that of GB on this point, and was not satisfied the other acts occurred. That finding further called the complainant's reliability into question (at [73]-[75]).
Complaint evidence:
The complaint evidence from GS was assessed as too general and inconsistent with GB's own account to carry any weight (at [55]-[57]). The complaint evidence from MS was noted to contain additional allegations not made by GB to police, including threats and conduct she had never previously described (at [63]-[65]). The court acknowledged that some of the questioning of GB had been leading, which went to the weight of the resulting answers (at [60]).
Orders Made
- The accused was found not guilty and acquitted on all seven counts.
Key Takeaways
- In a judge-alone trial where the Crown's case depends substantially on a single witness, the District Court directed itself to exercise particular caution and to examine the complainant's evidence carefully before acting on it to the criminal standard (at [26]-[27]).
- Good character directions serve a dual function: the District Court applied them both as an indicator of the unlikelihood of guilt and as a reason to give greater weight to the accused's evidence (at [28], [85]).
- Where complaint evidence is generalised and materially inconsistent with the complainant's own account to police, a court may give that complaint evidence no weight, meaning it cannot assist in assessing credibility or as evidence of the facts in issue (at [55]-[57]).
- Other acts evidence that contradicts the very tendency it is said to establish will not assist the Crown. The court found the Melbourne allegation implausible in part because it was the opposite of the asserted tendency, which required that the accused act sexually only when alone with the complainant (at [68], [74]).
- Inconsistencies between what a complainant told police and what they said in cross-examination, together with evidence of a witness's motivation to separate the accused from the family, can collectively raise sufficient doubt to require acquittal even where opportunity for the offending existed (at [99]-[109]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Criminal Procedure Act
- Evidence Act 1995
Cases
- Fleming v R (1998) 197 CLR 250