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District Court 4 June 2020

Freeman v DPP

[2020] NSWDC 280

Sexual offences
CRIMINAL LAW CONVICTION APPEAL

Citation: Freeman v DPP [2020] NSWDC 280
Court: District Court of New South Wales
Date: 4 June 2020
Judge: Abadee DCJ

Background

The appellant was convicted in the Local Court (Wyong) on 21 January 2020 of two counts of intentionally sexually touching a child, contrary to s 66DB(a) of the Crimes Act 1900 (NSW). The complainant was a 14-year-old girl who had known the appellant all her life and referred to him as "uncle." The alleged offending occurred late at night on 4 May 2019, after the appellant and other adults had spent the day at a football gala day and returned to the complainant's father's home, where they continued drinking.

The Crown alleged that the appellant entered the complainant's bedroom after she had gone to bed and touched her on two separate occasions: first on the vagina (sequence 1), and then on the bottom (sequence 2). Both touchings were said to have occurred over her clothing. The complainant's evidence in chief consisted substantially of a recorded police interview conducted four days after the alleged events.

The appellant appealed to the District Court by way of rehearing on the transcripts and exhibits from the Local Court proceedings. No application was made to adduce fresh evidence.

  • Whether the Magistrate's positive credibility findings regarding the complainant, which were partly based on demeanour, were glaringly improbable or contrary to compelling inferences drawn from the evidence
  • Whether the Crown had negated any reasonable possibility of the appellant's innocence in respect of each count
  • Whether the Magistrate was required to conduct a separate assessment of the evidence in relation to each count rather than adopting a global approach across both offences

Decision

Abadee DCJ confirmed the established principles governing conviction appeals by rehearing. The Court on appeal cannot duplicate the Magistrate's function in assessing witness credibility, and must give appropriate weight to demeanour-based findings. However, where such findings are glaringly improbable or contrary to compelling inferences, the appellate court may legitimately intervene. The Court drew on Fox v Percy (2003) 214 CLR 118 and Pell v The Queen [2020] HCA 12 in articulating these limitations.

In relation to sequence 1, the Court upheld the conviction. The Magistrate's findings as to the complainant's credibility and reliability in her account of being touched on the vagina were open on the evidence. The matters relied upon by the appellant did not render her account glaringly improbable or contrary to compelling inferences, and no basis for appellate intervention was established on that count.

In relation to sequence 2, the Court found that the Magistrate had adopted a global approach to the two offences without conducting a discrete assessment of the evidence specific to each. This approach carried the risk, which the Court found had materialised, that because the Magistrate was satisfied the appellant was guilty of sequence 1, he reasoned that guilt for sequence 2 followed. Abadee DCJ, drawing on R v Markuleski (2001) 52 NSWLR 82, held that each count required independent consideration.

The Court accepted that a doubt about the reliability of a complainant's account on one count can prompt pause in assessing the other, but does not automatically translate into reasonable doubt on both. On the particular facts, the failure to separately assess sequence 2 warranted intervention, and a reasonable doubt existed as to whether the appellant had engaged in the conduct alleged in that count. The conviction on sequence 2 was set aside; the conviction on sequence 1 was upheld.

Orders Made

  • The conviction for the offence in sequence 2 (touching on the bottom) was set aside.
  • The appeal against the conviction for the offence in sequence 1 (touching on the vagina) was dismissed.
  • The severity appeal hearing was listed for 10:00am on 25 June 2020, to be conducted by virtual courtroom.

Key Takeaways

  • A Magistrate determining guilt on multiple counts of sexual touching must conduct a discrete assessment of the evidence for each count separately; a global approach that allows a finding of guilt on one count to effectively carry over to another is a reviewable error.
  • Where demeanour-based credibility findings are glaringly improbable or contrary to compelling inferences, an appellate court conducting a rehearing may legitimately intervene, even though it cannot replicate the trial court's direct observation of witnesses.
  • Doubt about the reliability of a complainant's evidence on one count can warrant close scrutiny of the evidence on a related count, but such doubt does not automatically produce reasonable doubt across all counts.
  • The District Court confirmed that written transcripts of electronically recorded interviews used as evidence in chief in child sexual offence proceedings in the Local Court are properly before the Court on a conviction appeal by rehearing.
  • In applying Pell v The Queen [2020] HCA 12, the Court reaffirmed that objectively provable facts, contemporaneous evidence, and the apparent logic of events carry greater weight than demeanour when appellate courts assess credibility-based findings made below.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66DB
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 18
- Criminal Procedure Act 1986 (NSW), ss 293A, 306U, 306Y
- Evidence Act 1995 (NSW), s 18

Cases:
- Charara v R (2006) 164 A Crim R 39
- Dyason v Butterworth [2015] NSWCA 52
- Fox v Percy (2003) 214 CLR 118
- Pell v The Queen [2020] HCA 12
- R v Markuleski (2001) 52 NSWLR 82