Citation: Savidis v DPP [2020] NSWDC 281
Court: District Court of New South Wales
Date: 5 June 2020
Judge: Abadee DCJ
Background
The appellant was convicted by the Gosford Local Court on 12 March 2020 of one count of indecent assault, contrary to s 61L of the Crimes Act 1900 (NSW). The charge arose from an incident on 31 July 2018 at a residential property in Wyoming on the Central Coast.
The complainant, then aged 19, gave evidence that she had fallen asleep in an upstairs bedroom at a party and was woken by someone touching her vagina over her underwear. She identified the appellant as the person in the bed with her. He was said to have apologised at the time, using her name.
The appellant denied any inappropriate touching. He gave evidence that the three occupants of the room had all fallen asleep together after socialising, and that he was woken by the complainant asking him to leave. He contended that any apologies he sent in subsequent Facebook messages were prompted by sympathy for the complainant's prior experience of abuse, not by any admission of wrongdoing.
Legal Issues
- Whether the Magistrate erred in accepting the complainant's credibility over that of the appellant
- Whether the Crown had established the elements of the charge of indecent assault beyond reasonable doubt
- Whether the Facebook messages constituted admissions, and whether the appellant's alternative interpretation of them was reasonably open
Decision
Abadee DCJ reviewed the entirety of the trial record and considered the Magistrate's credibility findings, acknowledging that the Magistrate had the advantage of observing the witnesses firsthand and delivering extempore reasons. The District Court found no error in those findings.
Central to the District Court's reasoning was its assessment of the Facebook messages exchanged between the appellant and the complainant. The appellant's messages included apologies, an acknowledgment that his conduct was "totally out of hand and very disrespectful," and a promise not to repeat the behaviour. The Court found it extremely implausible that these messages were responses to nothing more than the complainant waking to find someone lying behind her. The messages substantially corroborated the complainant's account and, in the Court's view, significantly undermined the appellant's credibility.
The Court also addressed the delayed complaint. The complainant reported the offence to police approximately one year after the event. The Magistrate had noted that delayed complaint is a recognised phenomenon in cases of this kind, and the District Court found no error in that reasoning. The complainant had spoken to the mother of the householder (Ms Bryant) on the morning after the incident. While Ms Bryant's account of that conversation differed somewhat from the complainant's at trial, the Court did not regard the difference as inconsistent with the underlying complaint. The Court also observed it was notable that Ms Bryant appeared largely unmoved on learning that a man had been lying in bed alongside the complainant, which was consistent with the complainant later characterising the response as a dismissal.
Having reviewed the record and the submissions, Abadee DCJ was satisfied that the elements of the charge were established beyond reasonable doubt and that no error in the Magistrate's reasoning had been demonstrated. The appeal was dismissed.
Orders Made
- The appeal against conviction was dismissed.
Key Takeaways
- In dismissing the conviction appeal, the District Court confirmed that a Magistrate's credibility findings, made after direct observation of witnesses and expressed in extempore reasons, carry significant weight and will not be disturbed without demonstrated error.
- Facebook messages containing apologies and acknowledgments of wrongdoing can constitute admissions in a sexual assault prosecution, and an alternative interpretation offered by the accused will be assessed for plausibility against the full context of the exchange.
- Delayed complaint does not, of itself, undermine a complainant's credibility. The Magistrate's recognition of established reasons for delay in reporting sexual offences was accepted as a sound basis for reasoning.
- Differences between a complainant's account and an early complaint made to a third party do not automatically create inconsistency, particularly where the third party may not have appreciated the significance of what was being communicated.
- No error was established in the Magistrate's finding that the Crown had proven its case beyond reasonable doubt, notwithstanding the appellant's good character and his denial of any inappropriate touching.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61L (indecent assault)
Cases:
- De Silva v The Queen [2019] HCA 48
- Dyason v Butterworth [2015] NSWCA 52