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District Court 26 March 2021

Kaleli v R

[2021] NSWDC 826

Sexual offencesPublic order & justice offences
INTENTIONAL EXPOSURE PROOF BEYOND REASONABLE DOUBT

Citation: Kaleli v R [2021] NSWDC 826
Court: District Court of New South Wales
Date: 26 March 2021
Judge: P Taylor SC DCJ

Background

The appellant was a delivery driver who attended a bedding store in October 2019 to complete a delivery. He and the store's sole employee interacted briefly in the car park while unloading and completing the delivery paperwork. The complainant alleged that when the appellant held up his mobile device for her to sign, his fly was fully open and his penis was exposed.

The appellant was convicted in the Local Court of wilful and obscene exposure in a public place, an offence under s 5 of the Summary Offences Act 1988. He appealed that conviction to the District Court.

The appeal proceeded as a rehearing on the transcript and exhibits from the Local Court proceedings. No witnesses were called before the District Court, and no fresh evidence was admitted.

  • Whether the District Court was satisfied beyond reasonable doubt that the appellant wilfully exposed himself, given the evidence before the Local Court
  • Whether the element of wilfulness (that is, intentional exposure) had been proved to the criminal standard
  • How the appellant's prior criminal history and absence of any sexual offence history bore on the assessment of his character and credibility

Decision

The District Court identified the central contested issue as whether the exposure, if it occurred, was wilful. The Crown's case depended substantially on the complainant's evidence, which Taylor SC DCJ found to contain some inconsistencies, including discrepancies about whether the penis was inside or outside the pants and about what shirt the appellant was wearing. The court noted the magistrate's advantage in having seen and heard the witnesses and took that into account, but formed its own view of the facts.

On the appellant's evidence, he either denied his fly was open or said he was not aware that it was. The court acknowledged that the cross-examination revealed some initial equivocation on this point. However, taken as a whole, the appellant's evidence was that he did not knowingly expose himself.

The court gave some weight to the absence of any prior sexual offending in the appellant's history. It treated this as modest support for the proposition that he was unlikely to have committed an offence of this nature, while declining to extend a general good character finding in light of a prior dishonesty conviction. The court also noted the absence of any inculpatory words or actions by the appellant during the incident.

Taking all of those factors together, Taylor SC DCJ concluded that the evidence did not prove beyond reasonable doubt that the exposure was wilful. The conviction was set aside.

Orders Made

  • The conviction for wilful and obscene exposure in a public place was set aside.
  • The appellant was found not guilty.
  • The conviction appeal was upheld.

Key Takeaways

  • A conviction under s 5 of the Summary Offences Act 1988 for wilful and obscene exposure requires proof beyond reasonable doubt that the exposure was intentional, not merely that exposure occurred.
  • The District Court, on a conviction appeal conducted by rehearing under the Crimes (Appeal and Review) Act 2001, must form its own view of the facts on the evidence from below, while giving appropriate weight to the trial magistrate's advantage in observing witnesses.
  • Where a defendant has no history of sexual offending, the absence of that offending history can provide some, though limited, support for a finding that the defendant is unlikely to have committed the alleged offence.
  • A prior dishonesty conviction does not necessarily disqualify a defendant from the benefit of good character in respect of an offence of a fundamentally different nature, but it may limit the weight given to a credibility-based good character direction.
  • Inconsistencies in a complainant's evidence about the precise details of an alleged exposure, combined with a lack of any corroborating conduct by the accused, may be sufficient to leave reasonable doubt as to wilfulness even where the fact of exposure is not entirely disputed.

Legislation and Cases Referenced

Legislation
- Summary Offences Act 1988 (NSW), s 5 (wilful and obscene exposure)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 18, 20

Cases
- Charara v R (2006) 164 A Crim R 39; [2006] NSWCCA 244 (principles governing conviction appeals by rehearing in the District Court)