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District Court 26 February 2021

R v MC

[2021] NSWDC 239

Sexual offences

Citation: R v MC [2021] NSWDC 239
Court: District Court of New South Wales
Date: 26 February 2021
Judge: Bright DCJ

Background

The accused was charged with four counts of sexual intercourse without consent arising from alleged conduct between April 1990 and March 1991 in regional New South Wales. The complainant was 14 or 15 years old at the time and was in a relationship with the accused's son. The alleged offending occurred during an overnight stay at the accused's home.

The Crown alleged that on the second occasion the complainant stayed at the house, the accused entered the bedroom where she was sleeping, placed a hand over her mouth, and then forcibly digitally penetrated her vagina before engaging in penile/vaginal intercourse. Counts 1 and 3 alleged the more serious offence under s 61D(1A) of the Crimes Act 1900, which required proof that the complainant was under the accused's authority by reason of him being her boyfriend's father. Counts 2 and 4 were alternative counts alleging rape under s 61D(1) without that authority element.

The complainant did not report the conduct to police until December 2013, approximately 22 to 23 years after the events. The accused was arrested in July 2016, participated in a police interview, and denied the allegations. He elected a judge-alone trial over Crown objection; a pre-trial order permitting that election had been made by Judge Lerve in November 2020. The accused did not give or call evidence at trial.

  • Whether the Crown proved beyond reasonable doubt that the accused committed acts of digital and penile/vaginal sexual intercourse with the complainant
  • Whether the Crown proved beyond reasonable doubt that those acts occurred without the complainant's consent
  • Whether the Crown proved beyond reasonable doubt that the accused knew the complainant had not consented
  • Whether the Crown proved, in respect of Counts 1 and 3, that the complainant was under the accused's authority by reason of him being her boyfriend's father

Decision

Bright DCJ, sitting as the tribunal of fact, applied standard criminal directions to himself, including the presumption of innocence, the Crown's onus to prove every element beyond reasonable doubt, and the requirement that inferences be the only reasonable inference available from proven facts. His Honour assessed the credibility and reliability of each witness, distinguishing between honesty and accuracy as separate considerations.

The court was satisfied beyond reasonable doubt that both the digital penetration and the penile/vaginal intercourse had occurred. His Honour also found, beyond reasonable doubt, that both acts were performed without the complainant's consent, citing her account of the force used and the accused placing his hand over her mouth. The accused's knowledge of her non-consent was established to the same standard, based on the degree of force used and words spoken by the accused during the act: "don't make a noise or I'll hurt you."

However, the Crown did not satisfy His Honour beyond reasonable doubt on the authority element required for Counts 1 and 3. The court was not persuaded that the complainant was under the accused's authority by reason of his being her boyfriend's father, and accordingly returned not guilty verdicts on those counts. The accused was found guilty on Counts 2 and 4, the alternative rape charges under s 61D(1).

Orders Made

  • Count 1: Not guilty
  • Count 2: Guilty
  • Count 3: Not guilty
  • Count 4: Guilty

Key Takeaways

  • The District Court found that historical delay in reporting, of more than two decades, did not preclude findings of guilt beyond reasonable doubt where the complainant's evidence was assessed as credible and supported by complaint evidence from multiple witnesses.
  • A conviction under s 61D(1A) of the Crimes Act 1900 requires proof that the complainant was under the accused's authority; here, the court was not satisfied that the boyfriend's father relationship alone established that element.
  • Sufficient evidence existed to establish the accused's knowledge of non-consent where physical force and express threatening words during the acts were proved to the requisite standard.
  • In a judge-alone trial, the court reminded itself of all directions applicable in a jury trial, including the prohibition on substituting suspicion for proof and the need to accept or reject evidence selectively and rationally.
  • Where an accused elects trial by judge alone but the Crown withholds consent, a pre-trial order under the Criminal Procedure Act 1986 (NSW) may nonetheless permit the election to proceed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61D(1), 61D(1A)
- Criminal Procedure Act 1986 (NSW), ss 133(2), 133(3)
- Evidence Act 1995 (NSW)

Cases cited: None stated in the judgment.