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District Court 12 October 2021

DM v R (No. 1)

[2021] NSWDC 813

Assault & violenceDomestic & family violence
CRIME APPEAL CONVICTION APPEAL ONUS OF PROOF

Citation: DM v R (No. 1) [2021] NSWDC 813
Court: District Court of New South Wales
Date: 12 October 2021
Judge: Neilson DCJ

Background

The appellant was a 55-year-old senior lecturer in education at the University of Notre Dame, with approximately 24 years of prior experience as a schoolteacher. He was charged with common assault under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) arising from an incident on 8 August 2020 in the family home at Epping. The alleged victim was the appellant's son, then aged nine years and eight months.

The prosecution case rested on the unsworn evidence of the child (given as a Domestic Violence Evidence in Chief recording), the evidence of the child's mother, and the investigating constable's statement. The child's younger brother had told police he neither saw nor heard anything, and so provided no corroboration. The complaint was not made to police until one week after the alleged incident.

The appellant pleaded not guilty, gave evidence, and came before the Local Court as a man of prior good character with no convictions and no prior complaints arising from his lengthy career working with children. The Local Court found him guilty and also made a final Apprehended Domestic Violence Order (ADVO). He appealed both to the District Court.

  • Whether the Local Court magistrate applied the correct onus and standard of proof when finding the appellant guilty of common assault
  • Whether the appellant's prior good character, and the background knowledge his professional career provided about child development, were properly taken into account on both propensity and guilt
  • Whether the evidence of the child and his mother, considered against the whole of the evidence, was sufficient to support the conviction beyond reasonable doubt
  • Whether the ADVO, made ancillary to the conviction, should also be set aside

Decision

Neilson DCJ allowed the appeal against conviction. The District Court found that the Local Court had failed to give adequate weight to the appellant's prior good character and professional background when assessing both his propensity to commit the alleged assault and his guilt. A person of good character, with decades of experience working with children and a clean disciplinary record, was entitled to have those matters weighed meaningfully in his favour, not merely acknowledged.

The court also found that the reliability of the prosecution's key witnesses required careful scrutiny. The child's evidence was given as an unsworn DVEC recording, and the child's younger brother had provided no corroborating account. The one-week delay between the alleged incident and the police complaint was a further feature that warranted close attention. On the totality of the evidence, the District Court was not satisfied that the conviction could stand.

Turning to the ADVO, Neilson DCJ noted that the setting aside of the conviction did not automatically require the ADVO to be set aside as well. The ADVO was assessed independently, applying the civil standard of proof informed by the principles in Briginshaw v Briginshaw (1938) 60 CLR 336, which requires that the seriousness of an allegation be reflected in the weight of evidence needed to establish it. On that standard, the court was not persuaded that the child had reasonable grounds to fear the commission of any domestic violence offence against him or any member of his family, and the ADVO was also set aside.

Orders Made

  • The conviction recorded by the Local Court on 15 April 2021 was quashed
  • The final ADVO made by the Local Court on 15 April 2021 was set aside
  • The matter was adjourned to 14 October 2021 for the appellant's application for costs

Key Takeaways

  • A conviction appeal requires the appellate court to stand in the place of the trial court and assess whether the evidence, properly weighed, was sufficient to establish guilt beyond reasonable doubt.
  • Prior good character is not merely a formal matter to be acknowledged: the District Court held that it must be substantively weighed, both on the question of propensity and on the question of guilt, particularly where a defendant has a lengthy professional history involving children and no prior complaints.
  • An ADVO made ancillary to a conviction is not automatically set aside when the conviction is quashed. The appellate court must conduct a separate assessment of whether the statutory preconditions for an ADVO are met, applying the civil standard of proof.
  • Under the Briginshaw principle, the gravity of the matters alleged in ADVO proceedings is a relevant consideration in assessing whether the civil standard of proof has been met, even where the criminal conviction has fallen away.
  • Where a child gives unsworn DVEC evidence and no sibling corroboration exists, and where there is a significant delay between the alleged incident and the complaint to police, those features require careful and explicit treatment in the fact-finder's reasons.

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Evidence Act 1995 (NSW), s 142(2)

Cases
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Melbourne v The Queen (1999) 198 CLR 1
- R v Murray (1987) 11 NSWLR 12