Citation: R v Johnson (No 2) [2020] NSWDC 413
Court: District Court of New South Wales
Date: 26 June 2020
Judge: Grant DCJ
Background
The accused was charged with one count of sexual intercourse without consent, contrary to s 61A of the Crimes Act 1900, alleged to have occurred on 31 March 2018 at Moama, New South Wales. The complainant was identified in the judgment by initials only. The accused elected trial by judge alone, and Grant DCJ ordered that trial proceed, over the Crown's objection, in earlier proceedings reported as R v Johnson [2020] NSW DC 153.
The accused gave evidence at trial and firmly denied that any sexual or intimate contact occurred without the complainant's consent. The case turned substantially on a factual dispute between the complainant's account and that of the accused.
Legal Issues
- Whether the accused had sexual intercourse with the complainant at the time and place alleged
- Whether the complainant consented to the sexual intercourse
- Whether the accused knew that the complainant had not consented
- Whether the Crown had discharged its burden of proving each element of the offence beyond reasonable doubt
Decision
Grant DCJ directed himself on all relevant principles applicable to a judge alone criminal trial, including the presumption of innocence, the Crown's burden of proof on every element beyond reasonable doubt, and the requirement to draw inferences only where they are the sole reasonable inference available from proved facts. His Honour also applied the Liberato direction, noting that even where the accused's evidence was not believed, an acquittal was still required if the Crown had not proved guilt beyond reasonable doubt on the evidence accepted.
On the physical evidence, His Honour found it did not sufficiently corroborate the complainant's account. No semen or DNA consistent with the accused's evidence being false was located, despite the complainant's account giving rise to a clear expectation of such findings if true. The breast scratch observed was consistent with the accused's own account of what occurred. The redness reportedly seen on the complainant's neck by her aunt was neither mentioned by the complainant herself, not photographed, and not observed by the examining doctor upon thorough examination.
Turning to the accused's evidence, His Honour noted the accused was not required to testify but chose to do so. Cross-examination did not demonstrate that he had lied, and he maintained firm denials throughout. His Honour applied the good character directions in two respects: the unlikelihood of guilt, and the greater likelihood that the accused was telling the truth. Citing the Court of Criminal Appeal's observation in Xu v R [2019] NSWCCA 178, His Honour noted that good character evidence is notoriously important in serious sexual assault cases that turn on a word-against-word dispute.
His Honour concluded that the Crown had failed to eliminate a reasonable possibility that the accused's version of events was true, and therefore had not discharged its burden of proof. A verdict of not guilty was entered.
Orders Made
- The accused was found not guilty and an acquittal was entered on the record.
Key Takeaways
- In a judge alone criminal trial, the presiding judge is required to direct themselves on the applicable principles of law, including the burden of proof, the presumption of innocence, and the proper approach to drawing inferences from evidence.
- The District Court applied the Liberato direction, confirming that even where a judge does not believe the accused's evidence, a verdict of not guilty is still required unless the Crown proves guilt beyond reasonable doubt on the evidence accepted.
- Where a complainant's account creates a clear expectation of physical or forensic evidence and that evidence is absent, the gap can be material to whether the Crown has discharged its burden.
- A person of good character is entitled to have that character considered both as to the unlikelihood of guilt and as to the credibility of their evidence, a principle the court affirmed carries particular weight in serious sexual assault matters turning on factual disputes between the complainant and the accused.
- The Crown's failure to exclude a reasonable possibility that the accused's account was true was sufficient to require acquittal, regardless of any residual suspicion that might remain.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 61A
- Criminal Procedure Act 1986 (NSW), s 133(2) and (3)
- Evidence Act 1995 (NSW)
Cases
- Fleming v The Queen (1998) 197 CLR 250 (High Court: principles applicable to judge alone trials)
- R v Johnson [2020] NSW DC 153 (earlier interlocutory decision ordering judge alone trial)
- Xu v R [2019] NSWCCA 178 (good character evidence in serious sexual assault cases)