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District Court 24 March 2020

R v GN

[2020] NSWDC 59

Sexual offencesAssault & violence
CRIME CHILD SEX OFFENCES ASSAULT WITH ACT OF INDECENCY <10 CRIME CHILD SEX OFFENCES ASSAULT WITH ACT OF INDECENCY <16 CRIME CHILD SEX OFFENCES

Citation: R v GN [2020] NSWDC 59
Court: District Court of New South Wales
Date: 24 March 2020
Judge: Lerve DCJ

Background

The accused, identified only by the pseudonym GN due to suppression orders arising from his familial relationship with the complainants, faced 21 counts of child sexual offences alleged to have occurred in Young, New South Wales. The complainant in counts 1 to 9 was the accused's step-granddaughter (TWN), and the complainant in counts 10 to 21 was his granddaughter (KN). All alleged conduct took place at residences where the accused and his wife lived.

The offending alleged against TWN spanned from 2003 to 2005, when she was aged 7 or 8 years. The offending alleged against KN occurred across two periods: 2010 (when she was aged 4 or 5) and 2014 to 2015 (when she was aged 9 or 10). The alleged acts included multiple instances of indecent assault and, in respect of KN, two counts of sexual intercourse with a child under 10.

The accused elected trial by judge alone. The Crown opposed this course, but Lerve DCJ granted the application for reasons given on 14 November 2018. The matter had a lengthy procedural history, including a Crown application to amend counts 18 to 21 of the indictment and difficulties in coordinating the availability of both advocates.

  • Whether the Crown had proved beyond reasonable doubt each of the 21 counts on the amended indictment
  • Whether the complainants' evidence was sufficiently credible and reliable to found convictions, given the ages of the complainants at the relevant times and the delays in reporting
  • Whether the accused's denials raised a reasonable doubt as to any of the charges
  • The admissibility and treatment of evidence in a judge-alone trial involving child complainants and historic allegations

Decision

Lerve DCJ delivered verdicts on all 21 counts following a judge-alone trial. The court found the complainants' accounts credible and sufficient to establish guilt beyond reasonable doubt on each charge. The amended indictment had been accepted by both parties without the need to re-arraign the accused, a course the court was ultimately satisfied was appropriate.

In relation to counts 1 to 9, concerning TWN, the court found the accused guilty of nine counts of assault with an act of indecency on a child under 10, contrary to section 61M(2) of the Crimes Act 1900. The allegations involved a series of indecent touchings across three separate incidents during 2003 to 2005.

In relation to counts 10 to 21, concerning KN, the court entered guilty verdicts on all remaining charges. These included multiple counts of assault with an act of indecency under section 61M(2), together with two counts of sexual intercourse with a child under 10 under section 66A(1) of the Crimes Act 1900. The conduct spanned the periods 2010 and 2014 to 2015.

The court noted that both parties were well represented throughout the proceedings, and Lerve DCJ acknowledged counsel's patience while reasons were prepared following a personal difficulty experienced by the judge in January.

Orders Made

  • Count 1: Guilty
  • Count 2: Guilty
  • Count 3: Guilty
  • Count 4: Guilty
  • Count 5: Guilty
  • Count 6: Guilty
  • Count 7: Guilty
  • Count 8: Guilty
  • Count 9: Guilty
  • Count 10: Guilty
  • Count 11: Guilty
  • Count 12: Guilty
  • Count 13: Guilty
  • Count 14: Guilty
  • Count 15: Guilty
  • Count 16: Guilty
  • Count 17: Guilty
  • Count 18: Guilty
  • Count 19: Guilty
  • Count 20: Guilty
  • Count 21: Guilty

Key Takeaways

  • The District Court returned guilty verdicts on all 21 counts, encompassing nine counts of indecent assault against one child and twelve counts (including two of sexual intercourse with a child under 10) against another.
  • Suppression orders extended to the accused's identity because of his familial relationship with both complainants, illustrating how publication restrictions in child sexual offence proceedings can apply beyond the complainants themselves.
  • An accused's election for trial by judge alone under the relevant New South Wales legislation is not automatically granted where the Crown objects; here, the judge considered and accepted the application after hearing argument.
  • Amendments to an indictment during the course of hearing evidence did not require the accused to be re-arraigned where both parties agreed to that course and the accused maintained his pleas of not guilty throughout, a position the court ultimately accepted as appropriate.
  • Under sections 61M(2) and 66A(1) of the Crimes Act 1900, the prosecution of multiple discrete acts of indecency and sexual intercourse against child complainants can properly be charged as separate counts, each requiring independent proof beyond reasonable doubt.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A(1)
- Evidence Act 1995 (NSW)

Cases:
- R v Bauer (a pseudonym) [2018] HCA 40
- HML v The Queen [2008] HCA 16
- KRM v The Queen (2001) 206 CLR 221
- R v Louizos [2009] NSWCCA 71
- Mahmood v Western Australia [2008] HCA 1
- NZ v R (2005) 63 NSWLR 628