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District Court 9 June 2020

R v DLW (No. 4)

[2020] NSWDC 284

Sexual offences
CRIMINAL LAW TRIAL BY JUDGE ALONE CHILD SEX OFFENCES COMPLAINT EVIDENCE

Citation: R v DLW (No. 4) [2020] NSWDC 284
Court: District Court of New South Wales
Date: 9 June 2020
Judge: Abadee DCJ

Background

The accused faced three counts of sexual intercourse with a child under the age of 10 years, contrary to s 66A of the Crimes Act 1900 (NSW). The alleged offending occurred between 23 July 2009 and 22 July 2010 in Budgewoi, when the complainant was seven years old. The accused elected trial by judge alone.

The Crown's case rested primarily on the complainant's evidence, supported by complaint evidence from several witnesses and evidence bearing on the accused's consciousness of guilt. The defence raised an alibi, contending the accused was not present at the relevant location when the offending was alleged to have taken place.

The central factual question was whether the alleged acts of sexual intercourse occurred and, connected to that, whether the Crown could disprove the accused's alibi. The complainant's age at the relevant time was not in dispute.

  • Whether the complainant was a credible and reliable witness whose evidence could support convictions beyond reasonable doubt
  • The proper use of complaint evidence, including the mandatory hearsay warning and the warning regarding the effect of delay
  • Whether lies told by the accused demonstrated a consciousness of guilt
  • Whether the Crown had disproved the alibi defence beyond reasonable doubt
  • The proper approach for a judge sitting alone to mandatory jury warnings under s 133 of the Criminal Procedure Act 1986 (NSW)

Decision

Abadee DCJ began by setting out the applicable principles for a judge-alone trial under s 133 of the Criminal Procedure Act 1986 (NSW). The judge was required to identify the principles of law applied and the findings of fact relied upon. Applying Fleming v The Queen (1998) 197 CLR 250, his Honour noted that where a warning would have been required for a jury, the judge must identify the source of potential unreliability in the evidence and assess what weight to give it accordingly.

His Honour found the complainant to be a credible and reliable witness. Despite some variation in the complainant's recollection of the sequence of events across his records of interview and trial evidence, the court found that a close review of the evidence as a whole identified each particular of the alleged sexual assaults across all three counts. The complainant's evidence was assessed carefully in light of the mandatory warnings regarding complaint evidence as hearsay and the effect of delay on reliability.

The complaint evidence from multiple Crown witnesses, the court's findings on the accused's lies and their significance as consciousness of guilt, and the assessment of alibi evidence all informed the overall analysis. The court was satisfied the Crown had disproved the alibi and that the accused was present at the relevant location during the period of the alleged offending.

On each of the three counts, the court was satisfied beyond reasonable doubt that the accused had committed the offences as charged. Because the complainant's age at the time was undisputed, proof of the sexual acts themselves was sufficient to establish each offence, there being no fault element under s 66A.

Orders Made

  • The accused was found guilty on Count 1 (sexual intercourse with a child under 10, contrary to s 66A of the Crimes Act 1900 (NSW))
  • The accused was found guilty on Count 2 (sexual intercourse with a child under 10, contrary to s 66A of the Crimes Act 1900 (NSW))
  • The accused was found guilty on Count 3 (sexual intercourse with a child under 10, contrary to s 66A of the Crimes Act 1900 (NSW))
  • The accused was formally convicted on all three counts at the Crown's request, without objection from the defence

Key Takeaways

  • A conviction under s 66A of the Crimes Act 1900 (NSW) for sexual intercourse with a child under 10 requires no proof of a fault element: proof of the act and the child's age is sufficient.
  • In a judge-alone trial, the judge must identify the source of unreliability that would have triggered a jury warning and then assess the weight of the affected evidence accordingly, consistent with Fleming v The Queen (1998) 197 CLR 250 and GBB v R [2019] NSWCCA 296.
  • Inconsistencies in a child complainant's account across different stages of proceedings do not necessarily undermine credibility: the District Court here found the complainant reliable despite some variation in the sequence of recalled events, having regard to the evidence as a whole.
  • Complaint evidence from third parties carries a mandatory hearsay warning and is not treated as proof of the facts asserted; the court must separately assess its proper use and weight.
  • Where an accused raises an alibi, the Crown bears the burden of disproving it beyond reasonable doubt; in this case the court was satisfied the Crown met that burden.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61HA, 66A
- Criminal Procedure Act 1986 (NSW), ss 133, 281, 293A, 306U, 306W, 306X
- Evidence Act 1995 (NSW), ss 139, 165

Cases
- R v Winner (1995) 79 A Crim R 528
- Fleming v The Queen (1998) 197 CLR 250
- GBB v R [2019] NSWCCA 296