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District Court 1 February 2022

R v SW

[2022] NSWDC 2

Sexual offences

Citation: R v SW [2022] NSWDC 2
Court: District Court of New South Wales
Date: 1 February 2022
Judge: Montgomery DCJ

Background

The accused, a man with a significant intellectual disability, faced eight counts of sexual offending against two child complainants. The complainants were his niece (SR) and his second cousin (CB), both of whom spent considerable time at the family home where the accused lived with his mother. The alleged conduct spanned roughly a decade, from 2009 to 2020.

Six counts related to SR and alleged acts of indecency committed when she was between approximately four and ten years of age, contrary to sections 61M(2) and 61O(2) of the Crimes Act 1900 (NSW). The remaining two counts related to CB and alleged an act of indecency and a sexual act with a child under ten, contrary to sections 61M(2) and 66DC(a) of the same Act.

The trial proceeded as a judge-alone trial before Montgomery DCJ. The accused pleaded not guilty to all counts.

  • Whether the Crown proved each count beyond reasonable doubt, including the essential elements of the relevant offences under the Crimes Act 1900 (NSW)
  • Whether the evidence of each complainant was sufficiently credible and reliable to found a verdict of guilty
  • Whether tendency evidence relating to the conduct alleged across all eight counts made it more likely that the accused committed the specific acts charged
  • What principles of law applied to a judge-alone trial under sections 133(2) and 133(3) of the Criminal Procedure Act 1986 (NSW), including warnings that would have been given to a jury

Decision

Montgomery DCJ applied the standard principles governing judge-alone trials under the Criminal Procedure Act 1986 (NSW), drawing on Fleming v R (1998) 197 CLR 250 and Filippou v the Queen (2015) 256 CLR 47. His Honour affirmed that the Crown bore the onus of proof throughout and that the standard was proof beyond reasonable doubt, not mere suspicion or probability. The accused bore no onus to prove anything.

In relation to SR, his Honour examined her evidence in detail but was not satisfied it was credible to the requisite standard. Although SR's account described the acts alleged, the reliability of her evidence as a historian was compromised. The judgment noted that SR was a poor historian and that preference was given to other witnesses on certain factual matters. His Honour could not be satisfied beyond reasonable doubt on the basis of SR's evidence alone that the accused had committed the alleged acts.

Regarding CB, his Honour found that certain physical contact had occurred but was not satisfied beyond reasonable doubt that any touching of the kind alleged was deliberate, or that it amounted to an act of indecency. Specifically, Montgomery DCJ was not satisfied that a reasonable person would regard the conduct proved as offending community standards of decency in the absence of an intention on the part of the accused to obtain sexual gratification. The surrounding context, including the accused's engagement with a video game and the position of CB's body at the time, did not support such an inference.

His Honour also rejected the Crown's tendency argument. Because he was not satisfied beyond reasonable doubt that the conduct alleged in any of the eight counts had occurred, the tendency evidence could not operate to make it more likely that the accused had offended on any specific occasion. CB's evidence did not describe acts consistent with the conduct alleged in counts 7 and 8, and therefore could not support a finding of propensity.

Orders Made

  • Count 1: Not Guilty
  • Count 2: Not Guilty
  • Count 3: Not Guilty
  • Count 4: Not Guilty
  • Count 5: Not Guilty
  • Count 6: Not Guilty
  • Count 7: Not Guilty
  • Count 8: Not Guilty
  • Exhibits returned to the parties

Key Takeaways

  • In a judge-alone trial under sections 133(2) and (3) of the Criminal Procedure Act 1986 (NSW), the judge must state the principles of law applied and the findings of fact relied upon, and must take into account any warnings that would have been given to a jury.
  • A finding of indecency under the relevant provisions of the Crimes Act 1900 (NSW) requires the court to be satisfied that a reasonable member of the community would regard the conduct as offending standards of decency; absent proof of an intention to obtain sexual gratification, conduct falling short of that threshold cannot support a guilty verdict.
  • Tendency evidence cannot rescue a case where the court is not satisfied beyond reasonable doubt that the underlying conduct alleged in any count was actually committed by the accused.
  • Where a complainant is assessed as an unreliable historian, the court is entitled to prefer other witnesses on disputed factual matters and to decline to act on that complainant's account alone where it does not reach the requisite standard.
  • The accused's significant intellectual disability was treated as a relevant circumstance affecting the comparison of cognitive maturity between him and the complainants, rather than simply being measured by the age difference alone.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 61O(2), 66DC(a), 61HC
- Criminal Procedure Act 1986 (NSW), ss 133(2), 133(3)
- Evidence Act 1995 (NSW), s 136

Cases:
- Fleming v R (1998) 197 CLR 250
- Filippou v the Queen (2015) 256 CLR 47; [2015] HCA 29
- Cawthray v R [2013] NSWCCA 105
- Douglas v R [2012] HCA 34
- Eades v DPP (NSW) (2010) 77 NSWLR 173; [2010] NSWCA 241
- Harkin v R (1989) 38 ACrimR 296
- Johnson v Miller (1937) 59 CLR 467
- Mahmood v Western Australia (2008) 232 CLR 397
- R v Jones [2011] QCA 19
- R v VHP (unreported, NSWCCA, 7 July 1997)
- Reg v Dossi (1918) 13 CrApR 158
- S v The Queen (1989) 168 CLR 266
- The Queen v Phillips (1971) 45 ALJR 467