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District Court 27 August 2020

R v Shanmugam

[2020] NSWDC 482

Sexual offences
CRIMINAL PROCEDURE TRIAL JUDGE ALONE REASONS OF TRIAL JUDGE CONFLICT OF EVIDENCE REASONS FOR ACCEPTING WITNESSES

Citation: R v Shanmugam [2020] NSWDC 482
Court: District Court of New South Wales
Date: 27 August 2020
Judge: Haesler SC DCJ

Background

The accused was charged with five sexual offences alleged to have occurred on 7 January 2019 in Mangerton. The charges comprised two counts of unlawful sexual touching, two counts of sexual intercourse without consent, and one count of attempted sexual intercourse without consent, all under the Crimes Act 1900 (NSW).

The accused elected to be tried by judge alone, an application the Director of Public Prosecutions opposed. His Honour had already ordered a judge-alone trial on 10 July 2020 in separate reasons. The trial proceeded before Haesler SC DCJ without a jury.

The central factual dispute was whether the alleged acts occurred and, if so, whether the complainant consented. The fact that the accused and complainant were together at the relevant location on the night in question was not in dispute.

  • Whether the prosecution had proved each element of each count beyond reasonable doubt, including the occurrence of the alleged acts, the absence of the complainant's consent, and the accused's knowledge that she was not consenting
  • How to assess witness credibility, including the complainant's evidence, in a judge-alone trial
  • Whether delay in reporting and minor inconsistencies between the complainant's accounts undermined her reliability
  • What legal directions apply in a judge-alone sexual assault trial, including the treatment of the accused's intoxication when assessing his state of mind

Decision

Haesler SC DCJ emphasised that, in a judge-alone trial, the court has a duty to do more than simply announce verdicts. The court must articulate its reasoning process, state the applicable legal principles and warnings, summarise the parties' arguments, identify the issues, and resolve all questions of law and fact necessary to justify the verdicts reached.

The court directed itself on the standard legal principles governing onus and proof beyond reasonable doubt, the definition of consent (free and voluntary agreement), the irrelevance of physical non-resistance to consent, and the rules on knowledge of non-consent including recklessness. The court also directed itself that the effects of the accused's intoxication by alcohol and cannabis could not be taken into account when assessing his state of mind as to consent.

On the evidence, the court accepted the complainant's account and rejected the accused's version. The complainant's evidence was found to be consistent across all occasions from an early text message sent the morning of the alleged offences through to her trial testimony. Delay in formally reporting to police and some inconsistencies between her first complaint and her formal statement did not undermine her reliability. The court found that contextual factors such as flirtatious behaviour, dress, alcohol and cannabis use, and physical proximity were not indicators of consent to the acts alleged.

The court found that the accused had expected to engage in sexual activity, had taken steps to facilitate that opportunity, and had proceeded without ever asking the complainant directly about consent and without receiving it. Even setting aside his intoxication, the court was satisfied the accused knew the complainant was not consenting. All five counts were proved beyond reasonable doubt and the accused was found guilty on each.

Orders Made

  • Count 1: Guilty of sexual touching contrary to s 61KC(a) of the Crimes Act 1900
  • Count 2: Guilty of attempted sexual assault contrary to ss 61I and 344A(1) of the Crimes Act 1900
  • Count 3: Guilty of sexual touching contrary to s 61KC(a) of the Crimes Act 1900
  • Count 4: Guilty of sexual assault contrary to s 61I of the Crimes Act 1900
  • Count 5: Guilty of sexual assault contrary to s 61I of the Crimes Act 1900

Key Takeaways

  • In a judge-alone criminal trial, the trial judge must do more than deliver verdicts: the court is required to expose its reasoning, state applicable legal principles and warnings, summarise the parties' arguments, and resolve all live issues of law and fact.

  • A conviction for sexual assault requires proof beyond reasonable doubt that the act occurred, that the complainant did not consent, and that the accused knew she was not consenting, whether through actual knowledge, recklessness, or the absence of reasonable grounds for belief in consent.

  • Under the Crimes Act 1900, the intoxication of an accused by drugs or alcohol cannot be taken into account when assessing whether he knew the complainant was not consenting; the court must evaluate his state of mind as if he had not been intoxicated.

  • Delay in making a formal complaint to police does not necessarily indicate that an allegation is false, and the District Court applied this principle expressly in assessing the complainant's credibility.

  • Contextual factors such as flirtatious behaviour, dress, the consumption of alcohol or cannabis, and physical proximity are not, without more, indicators of consent to sexual touching or intercourse.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61HB, 61I, 61K, 61KC(a), 293, 344A(1)
- Criminal Procedure Act 1986 (NSW), s 132

Cases
- De Silva v The Queen [2019] HCA 48
- Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
- Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507
- R v Murray (1987) 11 NSWLR 12