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District Court 27 October 2021

Beaton v R

[2021] NSWDC 720

Sexual offences
APPEALS JURISDICTION OF APPELLATE COURT DISTRICT COURT NATURE OF APPEAL APPEAL BY REHEARING WHETHER REHEARING DE NOVO

Citation: Beaton v R [2021] NSWDC 720
Court: District Court of New South Wales
Date: 27 October 2021
Judge(s): Bennett SC DCJ

Background

The appellant was convicted in the Local Court at Goulburn on 17 August 2021 of sexually touching another person without consent, contrary to s 61KC(a) of the Crimes Act 1900. The conviction followed a defended hearing before Magistrate Beattie. The appellant was represented by counsel throughout.

The alleged offending occurred on 12 June 2020. The complainant and a housemate, Ms Hall, had shared accommodation with the appellant after advertising a spare room. On the night in question, all three attended a hotel together. After returning home, the complainant, who had consumed significant alcohol and cannabis and was suffering nausea, went to bed. She alleged the appellant entered her room and touched her sexually. She called out to Ms Hall, who entered the room and heard the complaint, including the complainant's reaction when Ms Hall inadvertently touched her hip.

The appellant appealed to the District Court under s 18(1) of the Crimes (Appeal and Review) Act 2001, arguing that the magistrate erred in finding the complainant's evidence truthful and reliable, particularly given the relatively limited detail of the initial complaint made to Ms Hall compared with the fuller account provided in evidence and in the complainant's police statement.

Legal Issues

  • What is the proper nature and scope of a District Court appeal from a Local Court conviction under s 18(1) of the Crimes (Appeal and Review) Act 2001, in light of recent Court of Appeal authority?
  • Whether the magistrate erred in accepting the complainant's evidence as truthful and reliable, given the difference in detail between the initial complaint to Ms Hall and the later formal account.
  • Whether the Crown's failure to call pharmacological expert evidence about the drug Ondansetron (administered to the complainant for nausea) constituted a deficiency in the prosecution case.
  • Whether, on a review of all the evidence, the conviction was safe or a miscarriage of justice had occurred.

Decision

Nature of the appeal

The court acknowledged that its understanding of District Court appeals from Local Court convictions had been refined by two subsequent Court of Appeal decisions: Dyason v Butterworth [2015] NSWCA 52 and Lunney v Director of Public Prosecutions [2021] NSWCA 186. These decisions, as summarised by the court, confirmed that the appellate court must determine whether the conviction is unsafe, unsatisfactory, or attended by a miscarriage of justice, while conducting its own review of the evidence and according appropriate weight to the magistrate's assessment of witness credibility (at [2]-[8]). The court treated those statements as binding (at [8]).

The initial complaint: alleged error of fact

The principal ground of appeal was that the magistrate should not have accepted the complainant's evidence as truthful and accurate, because her initial complaint to Ms Hall was bare and lacking in detail compared with her later account. The court rejected this argument (at [10]-[16]). It noted that differences between a complainant's accounts of sexual offending are common, and that both truthful and untruthful accounts may contain such differences, making it a matter for the tribunal of fact (at [16]). The court also found it significant that the appellant was present in the home when the complaint was made, which provided a ready explanation for the brevity of what the complainant said to Ms Hall (at [15]). The court applied s 66(2) of the Evidence Act 1995, observing that complaint evidence made substantially to the effect of what the complainant alleged is admissible and may be used as evidence of the truth of the allegation (at [12]).

Absence of pharmacological expert evidence

The court dismissed the argument that the Crown's case was deficient for failing to call an expert pharmacologist regarding Ondansetron. Ms Hall, a healthcare professional with direct experience administering the drug, gave unchallenged evidence about its use and effect (at [18]). No contrary material was put to her in cross-examination, and the suggestion that the drug, combined with alcohol and cannabis, compounded the complainant's incapacity was characterised as mere conjecture (at [18]).

Overall review of the evidence

The court conducted its own review of the evidence, including the complainant's account of the assault, Ms Hall's observations, and the appellant's responses. It found the appellant's WhatsApp message to the complainant and Ms Hall constituted representations against his interests and in the nature of admissions (at [39]-[40]). The court found it implausible that such representations would be made simply because the appellant had helped the complainant when she vomited (at [40]). Having reviewed the entirety of the evidence and the magistrate's reasons, the court found no error of fact or law and no improper exercise of discretion. The finding that the offence was proved was, in the court's view, clearly available on the evidence (at [45]).

Orders Made

  • The appeal is dismissed.
  • The finding of guilt is confirmed.
  • The orders of the Local Court are confirmed.

Key Takeaways

  • Under s 18(1) of the Crimes (Appeal and Review) Act 2001, the District Court must conduct its own review of the evidence from the Local Court proceeding, while giving appropriate weight to the magistrate's assessment of witness credibility, and must determine whether the conviction is unsafe, unsatisfactory, or attended by a miscarriage of justice (at [2]-[8]). The court treated this as the applicable standard following Dyason and Lunney, binding upon it.

  • Evidence of complaint under s 66(2) of the Evidence Act 1995 is admissible where made substantially to the effect of what the complainant alleged, and may be used as independent evidence of the truth of that allegation, not merely as a consistency indicator (at [12]).

  • Differences between a complainant's early informal complaint and later formal accounts do not, of themselves, establish unreliability. Both truthful and untruthful accounts of sexual offences may contain differences, and assessing the significance of those differences remains within the province of the tribunal of fact (at [16]).

  • No error arose from the Crown's failure to call a pharmacological expert where the evidence about the relevant drug came from a healthcare professional with direct practical experience administering it, and where no contrary material was advanced in cross-examination (at [18]).

  • In dismissing the appeal, the District Court treated the appellant's WhatsApp message to the complainant and her housemate as representations against interest and in the nature of admissions, finding it implausible that they were made merely in response to an embarrassing domestic incident (at [39]-[40]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Appeal and Review) Act 2001
- Evidence Act 1995

Cases
- AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
- Allesch v Maunz [2000] HCA 40
- Charara v R [2006] NSWCCA 244
- Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265
- Dyason v Butterworth [2015] NSWCA 52
- Lunney v Director of Public Prosecutions [2021] NSWCA 186