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District Court 14 May 2020

R v Clarke

[2020] NSWDC 881

Sexual offences

Citation: R v Clarke [2020] NSWDC 881
Court: District Court of New South Wales
Date: 14 May 2020 (verdict); reasons concluded 13 August 2020
Judge(s): Bennett SC DCJ

Background

The accused faced four counts on a District Court indictment: two counts of sexual intercourse with a child under ten years of age, one count of indecent assault on a child under sixteen, and a fourth count in the alternative to count three. The offences were alleged to have occurred at Leumeah in 2016 and involved two young children, one aged six or seven years and the other aged four years.

This was a retrial. The accused had previously been convicted by a jury, but the Court of Criminal Appeal allowed his appeal and remitted the matter to the District Court: Decision Restricted v R [2019] NSWCCA 234 (judgment restricted pending retrial). The retrial proceeded in April and May 2020.

The accused elected trial by judge alone under s 132 of the Criminal Procedure Act 1986, with the agreement of the Director of Public Prosecutions. Because of disruptions to court operations caused by COVID-19, a jury trial was unlikely to be available until late 2020 at the earliest, and the accused, who was in custody solely in relation to these proceedings, was anxious to proceed. The accused also consented to appearing via audio visual link from custody.

  • Whether the election for a judge-alone trial was procedurally valid notwithstanding that the application was lodged within 28 days of the trial date
  • Whether the children's evidence was credible and sufficient to establish guilt beyond reasonable doubt on each count
  • Whether inconsistencies between the children's trial evidence, their earlier evidence at the first trial, and their statements to investigators, were sufficient to raise reasonable doubt
  • Whether the Crown had proved every element of the charges to the requisite standard

Decision

Bennett SC DCJ was satisfied that the procedural requirements for the judge-alone election were met, including that the accused had received legal advice from his counsel before electing. Neither party opposed the trial proceeding forthwith, and no suggestion arose of any party taking advantage of judicial deployment.

The judge directed himself on the applicable principles, including the presumption of innocence, the Crown's burden of proving every element beyond reasonable doubt, and the proper approach to assessing witness reliability. His Honour noted that reliability turns on both honesty and accuracy, and that a witness may be honest but still mistaken.

The Crown case rested principally on the evidence of the two children. The judge found the children credible and accepted their core allegations as truthful and accurate. He was satisfied beyond reasonable doubt that they had described real events of misconduct by the accused.

Discrepancies between the children's evidence at the retrial, their earlier trial evidence, and their investigative statements were addressed. His Honour found those differences unsurprising given the nature of the witnesses. The family members who also gave evidence displayed emotional responses and certain limitations in their presentation, which the court acknowledged but which did not undermine the children's accounts. The alternative count four was not required to be decided, as a guilty verdict was returned on count three.

Orders Made

  • Accused found guilty on Count 1: sexual intercourse with TO, a child under ten years (six or seven years), between 1 January 2016 and 26 October 2016 at Leumeah, contrary to s 66A(1) Crimes Act 1900
  • Accused found guilty on Count 2: indecent assault on TO, a child under sixteen years, during the same period and location, contrary to s 61M(2) Crimes Act 1900
  • Accused found guilty on Count 3: sexual intercourse with SO, a child under ten years (four years), between 23 October 2016 and 26 October 2016 at Leumeah, contrary to s 66A(1) Crimes Act 1900
  • No verdict required on Count 4, as it was in the alternative to Count 3
  • The accused was convicted on each count on which a verdict was returned

Key Takeaways

  • A judge-alone trial under s 132 of the Criminal Procedure Act 1986 may proceed even where the election is lodged within the 28-day pre-trial period, provided neither party objects and the accused has received proper legal advice.
  • Under the judge-alone framework, Bennett SC DCJ was required by Fleming v R (1998) 197 CLR 250 to set out general directions of law, including the burden and standard of proof, as part of the written reasons.
  • Inconsistencies between a witness's evidence at trial and their prior statements do not automatically raise reasonable doubt; the court assessed those differences in light of the witnesses' individual characteristics and circumstances.
  • Where two counts are charged in the alternative, a guilty verdict on the primary count means no verdict need be returned on the alternative count.
  • The District Court proceeded to trial promptly in the COVID-19 environment where the accused was in custody solely in respect of the subject charges and a jury trial would have been significantly delayed, treating expedition as appropriate in the circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66A(1), 61M(2)
- Criminal Procedure Act 1986 (NSW), ss 132, 133
- Evidence Act 1995 (NSW)
- Evidence (Audio and Audio Visual Links) Regulation 2015, reg 4A

Cases
- Decision Restricted v R [2019] NSWCCA 234
- Fleming v R (1998) 197 CLR 250
- Abbott v The Queen [2017] NSWCCA 148
- Edwards v The Queen (1993) 178 CLR 193
- Ewen v R [2015] NSWCCA 117
- GM v R [2017] NSWCCA 78
- Hughes v The Queen (2017) 344 ALR 187
- IMM v The Queen (2016) 257 CLR 300
- Mahmoud v Western Australia (2008) 232 CLR 397
- R v Bauer (a pseudonym) [2018] HCA 40
- R v Murray (1987) 11 NSWLR 12
- Regina v Markuleski [2001] NSWCCA 290
- Zoneff v The Queen (2000) 200 CLR 234