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District Court 3 June 2020

R v Jandamarra (A pseudonym)

[2020] NSWDC 424

Sexual offences
CRIMINAL LAW JUDGE ALONE TRIAL SEXUAL INTERCOURSE CHILD COMPLAINANT

Citation: R v Jandamarra (A pseudonym) [2020] NSWDC 424
Court: District Court of New South Wales
Date: 3 June 2020
Judge: Grant DCJ

Background

The accused, referred to by the pseudonym Jandamarra, faced trial in the Griffith District Court sitting at Albury on five counts relating to alleged offences against a child complainant (referred to as JCK), who was aged eight or nine at the relevant time. The alleged offences occurred in Deniliquin between 1 July 2017 and 14 August 2018. Count 1 charged sexual intercourse with a child under ten years of age, contrary to s 66A(1) of the Crimes Act 1900. Counts 2 through 5 charged indecent assault of a child under 16, contrary to s 61M(2) of the Crimes Act 1900, with count 2 pleaded in the alternative to count 1.

The accused was a 70-year-old pensioner with 16 grandchildren. He had a criminal history dating back to 1967, but with no prior sexual offences. He had periodically cared for the complainant and another child on weekends, including taking the complainant to boxing training. He denied all wrongdoing and gave evidence at trial.

The court sat at Albury specifically to accommodate the complainant, who had travelled from Traralgon in Victoria. The accused had elected trial by judge alone, and that election proceeded over the Crown's opposition, following Grant DCJ's earlier decision in R v Johnson [2020] NSWDC 153.

  • Whether the Crown had proved, beyond reasonable doubt, the elements of sexual intercourse with a child under ten (count 1) and indecent assault of a child under 16 (counts 2 to 5)
  • Whether the complainant was a sufficiently honest and reliable witness to support a conviction, given the Crown case rested substantially on her evidence alone
  • How to assess the accused's evidence, including two notably curious answers under cross-examination, and whether his account left open a reasonable doubt
  • The appropriate standard of proof and the application of the presumption of innocence in a judge-alone criminal trial

Decision

Grant DCJ directed himself carefully on the applicable principles, including the presumption of innocence, the Crown's burden of proof beyond reasonable doubt, and the need for particular caution where a Crown case depends substantially or exclusively on the evidence of a single witness. The judge conducted five separate trials concurrently, each assessed on the evidence admissible to that count alone.

The judge found the complainant to be generally honest and reliable. However, on count 3, he identified an inconsistency between versions given by the complainant and entered a verdict of not guilty on that count.

On the remaining counts, the assessment turned on the interaction between the complainant's evidence and that of the accused. Grant DCJ noted two curious answers given by the accused in cross-examination. In the first, when asked whether he had attempted to touch the complainant on the vagina area during a camp, the accused replied: "No, because we were always busy doing things." In the second, when asked whether he had ever touched the complainant improperly at the camp, he answered: "No, not when you're doing that stuff. No, not ever." The judge acknowledged these answers were unusual, but accepted they may have reflected a lack of sophistication rather than consciousness of guilt.

Ultimately, the judge found that while he did not disbelieve the complainant, he also did not disbelieve the accused. Having suspicions about the accused's evidence, but having not reached a state of disbelief, the judge held he could not be satisfied to the standard of proof beyond reasonable doubt. Applying the fundamental principle that suspicion, even strong suspicion, cannot substitute for proof, he entered verdicts of not guilty on counts 2, 4, and 5. Count 1 is not addressed in the outcome section of the provided text, and the record reflects acquittals formally entered on counts 2, 4, and 5.

Orders Made

  • Verdicts of not guilty entered on counts 2, 4, and 5
  • Verdict of not guilty entered on count 3 (based on inconsistency in the complainant's evidence)

[Orders in relation to count 1 not located in provided text]

Key Takeaways

  • The District Court confirmed that where a judge does not disbelieve either the complainant or the accused, the Crown has not discharged its burden of proof beyond reasonable doubt, and acquittal must follow.
  • Suspicion, even strong suspicion, cannot serve as a substitute for proof beyond reasonable doubt in a criminal trial. Grant DCJ applied this principle directly in entering acquittals despite having "some suspicions" about the accused's evidence.
  • A conviction based substantially on the evidence of a single witness requires the tribunal of fact to be satisfied that the witness is both honest and accurate before it can act on that evidence to the criminal standard.
  • Where a complainant gives inconsistent accounts across different counts, that inconsistency may be sufficient to found a not guilty verdict on the affected count, even if the complainant is otherwise found to be a credible witness.
  • Curious or unusual answers given by an accused in cross-examination do not necessarily support an inference of guilt, particularly where the tribunal accepts a plausible innocent explanation, such as a lack of sophistication, for those answers.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66A(1), 61M(2)
- Criminal Procedure Act 1986 (NSW), s 133(2) and (3)

Cases
- R v Johnson [2020] NSWDC 153
- Fleming v The Queen (1998) 197 CLR 250