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District Court 22 September 2021

R v Doyle

[2021] NSWDC 499

Sexual offences
CRIMINAL LAW JUDGE ALONE TRIAL TINDER DATING SINGLE WITNESS ACCUSED NOT GIVING EVIDENCE UNRELIABLE WITNESS

Citation: R v Doyle [2021] NSWDC 499
Court: District Court of New South Wales
Date: 22 September 2021
Judge: Grant DCJ

Background

The accused faced two charges arising from an alleged incident on 22 March 2018 at Leeton, NSW. The first charge was sexual intercourse without consent (rape); the second was indecent assault. The complainant and the accused had connected through the Tinder dating application before meeting in person.

The matter proceeded as a judge-alone trial before Grant DCJ at the Albury District Court. All proceedings were conducted by virtual court, with no personal appearances. The accused pleaded not guilty to both counts.

The Crown case rested substantially on the evidence of the complainant as the single witness to the alleged events. The accused did not give evidence at trial but had provided a recorded police interview (an ERISP) in which he denied any wrongdoing.

  • Whether the Crown proved beyond reasonable doubt that sexual intercourse occurred without the complainant's consent and with the accused's knowledge of non-consent (Count 1)
  • Whether the Crown proved beyond reasonable doubt that the accused assaulted the complainant and at the time committed an act of indecency in her presence (Count 2)
  • Whether the complainant was a sufficiently reliable witness to sustain a conviction in a single-witness case
  • Whether the accused's version of events, as given in his ERISP, could reasonably be true, thereby generating a reasonable doubt

Decision

Grant DCJ directed himself on the applicable legal principles, including the standard and onus of proof, the Azzopardi direction (that no adverse inference could be drawn from the accused's election not to give evidence), and the proper approach to expert and single-witness evidence. His Honour acknowledged the Crown bore the onus of proving every element of each charge beyond reasonable doubt.

His Honour identified a substantial number of inconsistencies in the complainant's evidence. These included: her failure to mention choking to the examining doctor after describing it to police; contradictions between her 000 emergency call and her trial evidence about whether the accused's companion (Trey Doyle) was awake; CCTV footage contradicting her account of attending McDonald's; her concession in cross-examination that the accused never threatened her despite telling the 000 operator he had; her failure to show signs of distress to two other people present; and, significantly, her sending text messages to the accused's phone three months after the alleged incident asking him to call her, stating she missed him, and asking whether he wanted to have sex.

His Honour found the complainant was not a reliable witness to a standard that would support a finding of guilt beyond reasonable doubt. The accused's version, as provided in the ERISP, denied any wrongdoing, and the court found that version might reasonably be true. Under the applicable principle, where the accused's version of events might be true, a reasonable doubt exists and an acquittal must follow.

Verdicts of not guilty were returned on both counts.

Orders Made

  • Count 1 (sexual intercourse without consent): Not Guilty
  • Count 2 (indecent assault): Not Guilty

Key Takeaways

  • In a judge-alone trial, the judge must formally direct themselves on each applicable principle of law, including the onus and standard of proof, the Azzopardi direction on a non-testifying accused, and the proper treatment of expert and single-witness evidence.
  • Where the Crown case depends substantially on a single witness, significant and cumulative inconsistencies in that witness's accounts across different contexts (emergency call, police statement, medical history, trial evidence) can undermine the reliability needed for proof beyond reasonable doubt.
  • An accused's ERISP account, though not sworn evidence at trial, must be considered by the tribunal of fact; if the version given might reasonably be true, a reasonable doubt arises and an acquittal is required.
  • No adverse inference may be drawn from an accused's election not to give or call evidence, and the decision confirmed how the Azzopardi direction applies in the judge-alone context.
  • The District Court applied the established principle that suspicion, even a strong one, is not a substitute for proof beyond reasonable doubt.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 133(2) and (3)

Cases
- Fleming v The Queen (1998) 197 CLR 250 (High Court)
- Kennedy v R [2000] NSWCCA 487; 118 A Crim R 34
- R v Kneebone (1999) 47 NSWLR 450
- Zabakly v R [2021] NSWCCA 155