Citation: Dreyer v R [2022] NSWDC 190
Court: District Court of New South Wales
Date: 2 June 2022
Judge(s): Scotting DCJ
Background
The appellant and the complainant were acquaintances whose mothers were friends. On 29 July 2020, they walked together along the South Head Heritage Trail at Watsons Bay. The prosecution case was that, while seated on a park bench between 6:30pm and 8:00pm, the appellant took the complainant's hand and placed it on his crotch, then opened the fly on her jeans and rubbed her body on the outside of her underwear.
The appellant denied the alleged acts occurred. His account was that the complainant made a sexual advance toward him, placing her hand on his leg, and that he moved away and told her he did not want a physical relationship. He did not put intent or consent in issue.
The appellant was found guilty in the Local Court of one count of inciting sexual touching contrary to s 61KC(b) of the Crimes Act 1900 and one count of sexual touching contrary to s 61KC(a). He appealed both convictions to the District Court as of right under the Crimes (Appeal and Review) Act 2001.
Legal Issues
- Whether the magistrate's findings of guilt were affected by error, including impermissible reasoning about the complainant's credibility
- Whether the inconsistencies in the complainant's evidence were sufficient to raise a reasonable doubt about the prosecution case
- Whether, on an independent review of the evidence, the prosecution established the alleged acts beyond reasonable doubt
Decision
Impermissible Reasoning by the Magistrate
Scotting DCJ identified a passage in the magistrate's reasons that raised concern. The magistrate appeared to engage in impermissible reasoning by speculating as to whether the complainant had a motive to lie, without identifying one. It is not permissible for a tribunal of fact to accept a prosecution witness's evidence simply because no motive for lying could be identified (at [18]-[19]). Because the appellant's guilt depended on acceptance of the complainant's evidence to the criminal standard, and because it was unclear what weight the magistrate placed on this reasoning, the District Court found it necessary to reconsider the evidence and the ultimate result independently (at [19]).
Inconsistencies in the Complainant's Evidence
The appellant pointed to three main areas of inconsistency: the location of the bench on the Trail, the level of detail the complainant conveyed to her mother on the night, and whether the appellant had made continuous advances over the full 30 minutes on the bench. Scotting DCJ found that, while the complainant was mistaken about the bench's location (placing it at the northern end of the Trail near the lighthouse when she later identified a bench at the southern end to police), this inconsistency was not significant (at [33]). The other alleged differences were characterised as minor and adequately explained by the stress of giving evidence, the circumstances of the complaint made to her mother, and the provisions of s 293A of the Criminal Procedure Act 1986 (at [27]-[28]).
The Mother's Complaint Evidence
The mother's police statement was made about three days after the complaint. Scotting DCJ found that it was "highly likely" the mother's account was an incomplete, rolled-up version of what she had been told, subject to interpretation and distortion, and that some aspects reflected inferences the mother had drawn rather than direct repetition (at [30]). This did not undermine the complainant's veracity.
Independent Review and Outcome
After conducting an independent review of the evidence, Scotting DCJ was satisfied that the complainant's evidence was truthful and credible despite any minor differences in her accounts, and that the mother's evidence was consistent with the complainant's account (at [35]). The appellant's version of events, that the complainant had lured him to a secluded spot to make a sexual advance as part of a "personal bachelor quest," was rejected as implausible and unbelievable (at [34]). The prosecution evidence established the acts alleged in both offences beyond reasonable doubt (at [36]).
Orders Made
- Appeal dismissed.
- The orders of the magistrate confirmed.
Key Takeaways
- A tribunal of fact engages in impermissible reasoning when it accepts a prosecution witness's evidence on the basis that no motive for lying could be identified. Where this occurs and the conviction depends on that witness's evidence, the appellate court must undertake an independent review of the evidence and the result (at [19]).
- Under s 18 of the Crimes (Appeal and Review) Act 2001, a District Court appeal is a rehearing on certified transcripts, not a hearing de novo. The appellate judge forms an independent view of the facts while giving appropriate weight to the magistrate's advantage of seeing and hearing witnesses (at [5]-[6]).
- Minor inconsistencies in a complainant's accounts, including differences between in-court testimony and what was conveyed to a family member on the night, are not necessarily destructive of credibility. The District Court accepted that stress, trauma, and the circumstances of an informal complaint can explain variations in detail (at [27]-[32]).
- A complaint made by a victim to a family member shortly after an incident is unlikely to be a complete or precise account. Where a family member later gives a police statement about what they were told, that statement may reflect a "rolled up" and partially interpreted version of the complainant's words rather than an accurate record (at [30]).
- Demonstrating error on a s 18 appeal does not reverse the onus of proof. Throughout the appeal, the prosecution retained the burden of establishing guilt beyond reasonable doubt (at [11]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Crimes (Appeal and Review) Act 2001
- Criminal Procedure Act 1986
Cases
- AG v Director of Public Prosecutions [2015] NSWCA 218
- Brown v R [2008] NSWCCA 306
- Charara v R [2006] NSWCCA 244
- Fox v Percy (2003) 214 CLR 118
- Gianoutsas v Glykis [2006] NSWCCA 137
- Lumney v Director of Public Prosecutions [2021] NSWCA 186
- McNab v Director of Public Prosecutions [2021] NSWCA 298