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District Court 22 April 2022

R v CP

[2022] NSWDC 125

Sexual offences
JUDGE ALONE TRIAL SEXUAL INTERCOURSE INDECENT ASSAULT CONSENT TENDENCY EVIDENCE

Citation: R v CP [2022] NSWDC 125
Court: District Court of New South Wales
Date: 22 April 2022
Judge: Weinstein SC DCJ

Background

The accused faced eight counts of historical sexual offences alleged to have occurred during the 1990s. Six counts alleged sexual intercourse without consent against his then-wife (SJ), and one count of indecent assault against SJ. A further count alleged indecent assault against ML, who was SJ's sister and the accused's sister-in-law at the relevant time.

The accused and SJ had married in January 1988 and had three children together. Their marriage broke down in 1999 and they divorced around 2000, followed by acrimonious family law proceedings. SJ did not report the alleged offences to police until approximately 2019, more than 20 years after the events in question.

The alleged offences involving SJ consisted of sexual acts committed while she was asleep or pretending to be asleep, including oral, anal, and vaginal penetration, occurring at both the former matrimonial home and at the home of the accused's sister. The indecent assault on ML was alleged to have occurred while ML was babysitting the couple's children. The trial proceeded as a judge-alone trial under section 133 of the Criminal Procedure Act 1986.

  • Whether the Crown had proved beyond reasonable doubt that each alleged act of sexual intercourse occurred without SJ's consent
  • Whether the Crown had proved beyond reasonable doubt that the accused knew SJ was not consenting, including through recklessness as to consent
  • Whether the Crown had proved the indecent assault on ML beyond reasonable doubt
  • The proper application of tendency evidence principles in the context of multiple complainants and overlapping allegations
  • How to assess the credibility and reliability of complainants in a historical sexual offending case involving a long delay in reporting
  • The correct approach to a judge-alone trial, including the requirement to expose the court's reasoning process linking legal principles to findings of fact

Decision

Weinstein SC DCJ conducted a careful judge-alone analysis, applying the principles from Fleming v The Queen (1998) 197 CLR 250, which require the court to expose the reasoning process linking applicable legal principles to findings of fact. The judgment set out the elements of each offence, the applicable definitions of sexual intercourse and consent under the Crimes Act 1900, and the directions that would ordinarily be given to a jury, including warnings relevant to delayed complaint and credibility assessment.

On the question of consent, the court applied the statutory framework under the Crimes Act 1900, which provides that a person does not consent by reason only of failing to offer actual physical resistance. The accused's knowledge of non-consent was assessed on the basis of whether he knew SJ was not consenting or was reckless as to that fact. Recklessness was defined as either failing to turn his mind to the possibility of non-consent at all, or appreciating the possibility and proceeding regardless.

Tendency evidence was considered in the context of the overlapping counts and the evidence relating to both complainants. The court was required to assess the probative value of that evidence against the risk of unfair prejudice, guided by the principles in R v Bauer [2018] HCA 40 and Greenaway v R [2021] NSWCCA 253.

The full verdicts on each count are not reproduced in the portions of the judgment provided, and accordingly the specific outcomes on individual counts cannot be confirmed from the available text.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A judge presiding over a trial on indictment without a jury must, under Fleming v The Queen, expose the full chain of reasoning connecting the applicable legal principles to the facts found, producing a judgment that functions as a substitute for a jury verdict.
  • Absence of physical resistance does not constitute consent under the Crimes Act 1900. The court applied the statutory provision that a complainant who does not physically resist is not, for that reason alone, to be treated as consenting.
  • Recklessness as to consent, for the purposes of section 61I of the Crimes Act 1900, encompasses two distinct mental states: a complete failure to consider whether consent was present, and an awareness of the possibility of non-consent accompanied by a decision to proceed regardless.
  • Historical sexual offending within a marriage is not insulated from criminal liability by the existence of a prior consensual sexual relationship. The marital context was treated as part of the factual background rather than as a factor affecting the legal elements of the offences.
  • Where tendency evidence is adduced from multiple complainants in a sexual assault trial, its admissibility and use remains subject to the requirements considered in R v Bauer [2018] HCA 40, with the court required to assess probative value against the risk of prejudice.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61H, 61I, 61L, 61R
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW)

Cases
- Fleming v The Queen (1998) 197 CLR 250
- R v Bauer [2018] HCA 40
- Greenaway v R [2021] NSWCCA 253