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District Court 27 October 2021

R v JDS

[2021] NSWDC 579

Sexual offences
CRIME JUDGE ALONE TRIAL HISTORICAL CHILD SEX OFFENDING AGGRAVATED INDECENT ASSAULT AGGRAVATED SEXUAL ASSAULT SEXUAL INTERCOURSE

Citation: R v JDS [2021] NSWDC 579
Court: District Court of New South Wales
Date: 27 October 2021
Judge: Mahony SC DCJ

Background

The accused, JDS, faced a seven-count indictment arising from alleged historical sexual offending against three children in a household setting between 1989 and 1992. The three complainants were siblings, referred to by their initials, and were very young at the time of the alleged offending. The accused held a position of authority over all three children.

The charges included two counts of aggravated sexual assault (sexual intercourse with a person aged 10 to 16 under the offender's authority) against complainant DE, three counts involving complainant DSE (inciting an act of indecency, assault with an act of indecency, and sexual intercourse with a child under 10), and two counts of assault with an act of indecency against complainant JE.

By consent, the trial proceeded as a judge-alone trial before Mahony SC DCJ, commencing on 5 October 2021.

  • Whether the Crown proved each count beyond reasonable doubt, applying the standard criminal burden of proof
  • Whether the evidence of each complainant was sufficiently reliable to found a verdict of guilty
  • The admissibility and use of tendency evidence and context evidence under the Evidence Act 1995 (NSW)
  • The proper drawing of inferences from established facts, without resort to speculation

Decision

Mahony SC DCJ assessed the credibility and reliability of witnesses in both the Crown and defence cases before making findings of fact on each count. The judge applied the correct burden of proof throughout, noting that no onus rested on the accused and that inferences could only be drawn from established facts.

On the counts involving DE (Counts 1 and 2) and DSE (Counts 3, 4 and 5), the court was satisfied beyond reasonable doubt that the offending occurred. The Crown case drew on the direct evidence of the complainants, which the judge accepted, together with evidence from other witnesses including family members and an expert. The accused's own evidence, given in an electronically recorded interview (ERISP) and at trial, was also considered.

In respect of the two counts involving the youngest complainant JE (Counts 6 and 7), the court was not satisfied beyond reasonable doubt that the Crown had proved the charges, and returned verdicts of not guilty on both counts. The judgment does not disclose the specific reasons for those acquittals in the portions available, though the different age and circumstances of that complainant are relevant to the charges as framed.

The accused's evidence was considered but not accepted in a way that displaced the Crown case on the counts resulting in guilty verdicts. The case cited, Markuleski v R (2001) 52 NSWLR 82, reflects the court's engagement with principles governing tendency and context evidence in proceedings of this kind.

Orders Made

  • Count 1 (aggravated sexual assault, DE): Guilty
  • Count 2 (aggravated sexual assault, DE): Guilty
  • Count 3 (inciting act of indecency, DSE): Guilty
  • Count 4 (assault with act of indecency, DSE): Guilty
  • Count 5 (sexual intercourse with child under 10, DSE): Guilty
  • Count 6 (assault with act of indecency, JE): Not Guilty
  • Count 7 (assault with act of indecency, JE): Not Guilty

Key Takeaways

  • The District Court returned a split verdict, convicting on five counts and acquitting on two, demonstrating that a judge-alone trial permits careful differentiation between counts where the evidence varies in strength.
  • Historical child sexual offending charges can proceed to conviction on the evidence of complainants recounting events from early childhood, where the judge finds that evidence credible and reliable after assessment.
  • Tendency evidence and context evidence, governed by the Evidence Act 1995 (NSW) and principles confirmed in Markuleski v R, were considered as part of the Crown case in a multi-complainant historical offending trial.
  • The Crown bears the onus of proving each element of each charge beyond reasonable doubt; the presumption of innocence and the absence of any onus on the accused were expressly applied count by count.
  • An accused person's position of authority over child complainants is a distinct element of certain aggravated offences, and the Crown must establish that element separately for each relevant count.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)

Cases:
- Markuleski v R (2001) 52 NSWLR 82; [2001] NSWCCA 290