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District Court 25 September 2020

The Queen v DLW

[2020] NSWDC 701

Sexual offences
JUDGMENT JUDGE ALONE TRIAL SEXUAL INTERCOURSE WITHOUT CONSENT PERSON UNDER THE AGE OF 16 YEARS

Citation: The Queen v DLW [2020] NSWDC 701
Court: District Court of New South Wales
Date: 25 September 2020
Judge: Wilson SC DCJ

Background

The accused faced four counts of aggravated sexual assault under s 61J(1) of the Crimes Act 1900 (NSW), the aggravating circumstance in each case being that the alleged victim was under 16 years of age. The charges related to two complainants: LM, who was aged 10 to 11 years at the time of the alleged offending between 2002 and 2003, and AP, who was 12 years old at the time of the alleged offending in late 2004.

The trial proceeded as a judge-alone trial, running from 28 July to 15 September 2020. The accused pleaded not guilty to all four counts and elected not to give evidence.

A preliminary procedural issue arose concerning the indictment. The substitution of earlier indictments relating to each complainant into a single combined indictment had not received court leave, nor had the accused's consent been formally recorded before trial. The court resolved this by obtaining the accused's express consent on the record, correcting what would otherwise have been a nullifying irregularity.

Legal Issues

  • Whether the substitution of the indictment without prior leave was cured by the accused's consent, including whether that consent could be implied or inferred from conduct
  • Whether tendency evidence concerning the accused's alleged interest in and sexual conduct toward young males under 14 was admissible under the Evidence Act 1995 (NSW)
  • Whether the Crown had proved each of the four counts of aggravated sexual assault beyond a reasonable doubt, having regard to the credibility and reliability of each complainant
  • What weight to give to evidence from the accused's brother Dwayne, who denied that the first complainant LM had ever complained to him of sexual abuse
  • Whether delay in prosecution caused the accused actual prejudice in his defence

Decision

Preliminary Issue: Indictment Irregularity

The court found that the substitution of the combined indictment for the earlier separate indictments constituted an amendment within the meaning of s 20(3) of the Criminal Procedure Act 1986 (NSW), and that leave had not been sought or granted before trial. Relying on DJB v R [2007] NSWCCA 209, the court noted that consent can be implied from conduct, but chose to resolve the matter directly by obtaining the accused's express consent on the record (at [3]-[7]). The court remarked that the controversy ought to have been avoided before trial commenced (at [8]).

Tendency Evidence

The court granted the Crown leave to rely on tendency evidence under the Evidence Act 1995 (NSW). The court was satisfied that the evidence of uncharged acts involving both complainants shared the common features identified in the Crown's tendency notice: the accused targeted young males aged 14 and under to whom he gained access, engaged in sexual activity with them including penile-anal intercourse, used violence during the acts, and threatened his victims with physical harm or death if they disclosed the offending (at [43]-[45]). The court found the tendency proved beyond a reasonable doubt in connection with the charges relating to LM, and noted it supported but did not independently sustain the guilty verdicts (at [250]-[251]).

Count 4: Complainant AP (Not Guilty)

The court was not satisfied beyond a reasonable doubt that the offence against AP was proved (at [130]). Three issues undermined AP's reliability. First, approximately seven months after his JIRT interview, AP told two independent youth workers, without prompting, that the accused had not committed the offence. The court found this retraction gave rise to considerable doubt about the reliability of his original account (at [107]-[110]). Second, AP raised for the first time in 2019 that the accused had been armed with a firearm during the assault, doing so in the context of applying for a review of a Victims Services award; he had not mentioned this in his December 2004 police interview or his July 2005 conference with prosecutors. The court found this omission, and his inconsistent explanations for it, crippled his credibility (at [118]-[119]). Third, allegations of other sexual assaults emerged for the first time during cross-examination, in circumstances where the court formed the view that AP was fabricating them to accommodate his teacher's recollection of his complaint (at [124]-[127]). The court found that these failures could not be overcome by tendency evidence, as using it to do so would be impermissible (at [133]).

Counts 1, 2 and 3: Complainant LM (Guilty)

The court found LM to be a most impressive, reliable and truthful witness whose accounts across his 2005 JIRT interview, two police walk-throughs in 2018, and trial evidence were consistent, cogent, compelling and precise on every occasion (at [137]-[142]). The only matter giving the court pause was the evidence of Dwayne, the accused's brother, who denied that LM had ever complained to him of sexual abuse. The court resolved this issue by reference to the evidence of Stephen Morell, an independent Youth Insearch volunteer, who gave evidence that LM had disclosed to him at a youth camp in 2004 or 2005 that someone in the neighbourhood had done sexual things to him in a shed (at [227]). The court accepted Morell's evidence without reservation, finding he was a truly independent witness with no motive to lie and that the complaint was made in a manner indicating reliability (at [226]-[230]). That finding led the court to conclude that Dwayne had given untruthful evidence in denying any knowledge of the uncharged act, most likely to protect his brother, which fatally undermined his credibility as a witness (at [237]-[238]). With Dwayne's evidence rejected, the court accepted LM's evidence beyond a reasonable doubt and returned guilty verdicts on all three counts (at [244], [254]-[256]).

Orders Made

  • Count 1 (aggravated sexual assault against LM at Gloucester, between February 2002 and June 2003): Guilty
  • Count 2 (aggravated sexual assault against LM at Gloucester, between February 2002 and June 2003): Guilty
  • Count 3 (aggravated sexual assault against LM at Mannering Park, between February 2002 and June 2003): Guilty
  • Count 4 (aggravated sexual assault against AP at Budgewoi, between November and December 2004): Not Guilty
  • Exhibits to be returned
  • Accused to remain in custody awaiting sentence

Key Takeaways

  • A substituted indictment that has not received court leave constitutes an irregularity under s 20 of the Criminal Procedure Act 1986 (NSW), but the defect can be cured by the accused's consent, which may be express or implied from conduct at trial (at [3]-[7]).

  • Where a complainant retracts allegations to independent persons without prompting, then introduces significant new details years later in the context of a compensation claim, and gives internally inconsistent explanations for those omissions, those matters can individually and collectively give rise to a reasonable doubt that defeats the Crown case (at [107]-[119], [130]-[132]).

  • Tendency evidence cannot be used to overcome a fundamentally unreliable Crown case: the District Court confirmed that deploying tendency reasoning to fill a gap created by a complainant's destroyed credibility would constitute impermissible use of that evidence (at [133]).

  • An independent witness who observed no conduct giving rise to a motive for untruthfulness, and who made appropriate concessions in cross-examination, can be accepted without reservation and can displace conflicting evidence from a family member who the court finds was lying to protect a relative (at [226], [237]-[238]).

  • Delay between alleged offending and prosecution remains a matter requiring careful judicial direction in a judge-alone trial, including recognition that the accused may have lost opportunities to locate witnesses or evidence that could have assisted the defence, even where the delay in making complaints was relatively short (at [57]-[67]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 61J(1)
- Criminal Procedure Act 1986 (NSW) s 20
- Evidence Act 1995 NSW ss 55, 97, 102

Cases
- DJB v R [2007] NSWCCA 209
- Murray v R (1987) 11 NSWLR 12
- R v Beserick (1993) 30 NSWLR 510DJB v R [2007] NSWCCA 209
- R v Zorad [1979] 2 NSWLR 764
- SB v R [2020] NSWCCA 207