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District Court 14 July 2022

R v Scott

[2022] NSWDC 266

Sexual offences
CRIME JUDGE ALONE TRIAL VERDICT

Citation: R v Scott [2022] NSWDC 266
Court: District Court of New South Wales
Date: 14 July 2022
Judge: Bourke SC DCJ

Background

The accused, a former schoolteacher at a Sydney high school, faced two charges arising from an alleged incident in December 1984. The complainant was a 16-year-old male pupil at the school where the accused taught. Both parties were male, and neither the teacher-pupil relationship nor the complainant's age were in dispute.

The first charge alleged that the accused caused the complainant to ingest a stupefying drug (cannabis), combined with alcohol the complainant had already consumed, with the intent to enable a sexual assault. The second charge alleged that the accused had homosexual intercourse with the complainant, specifically by placing the complainant's penis into his mouth, during the period when the accused worked as his teacher.

The trial proceeded before a judge alone. The Crown relied on the complainant's own evidence, complaint evidence from two friends to whom the complainant disclosed the alleged offending in 2018, and tendency evidence from five other witnesses who gave evidence in prior proceedings.

  • Whether the Crown proved beyond reasonable doubt that the accused caused the complainant to ingest a stupefying drug within the meaning of Count 1.
  • Whether the Crown proved beyond reasonable doubt that the accused had homosexual intercourse with the complainant as alleged in Count 2.
  • How to assess tendency evidence presented via audio recordings without accompanying video, including the weight to be given to demeanour observations.
  • Whether complaint evidence from 2018 was admissible and, if so, what weight it should carry in support of the complainant's credibility.

Decision

Count 1: Not guilty. The judge was not satisfied beyond reasonable doubt that the cannabis smoked by the complainant amounted to a "stupefying drug" in the relevant sense, that is, a substance that dulled his senses or faculties to a significant degree. While the complainant had also consumed alcohol earlier, Bourke SC DCJ could not be satisfied to the required standard that the effect of the cannabis rose to the level the charge required. The verdict on this count did not reflect any concern about the complainant's credibility regarding the underlying sexual conduct.

Count 2: Guilty. The judge was satisfied beyond reasonable doubt of the essence of the complainant's evidence: that in December 1984, the accused took him to a location where cannabis was consumed, and that while the complainant was lying in the back of the accused's van, the accused touched his genitals before placing his penis into the accused's mouth. Bourke SC DCJ was satisfied each element of the offence was proved beyond reasonable doubt.

The finding of guilt on Count 2 was supported by tendency evidence from five witnesses (NP, CC, IK, SS, and GM), which the court found established a relevant tendency. Significantly, the judge stated that even without that tendency evidence, he remained satisfied beyond reasonable doubt on the complainant's evidence alone.

The complaint evidence, being the complainant's disclosure to two friends in July 2018, was accepted as having occurred. The court treated it as additional evidence supporting the truth of the complainant's allegations, and as lending further support to his credibility, given the circumstances in which the disclosure was made.

Orders Made

• The Accused is found not guilty of Count 1
• The Accused is found guilty of Count 2
• He is convicted of Count 2

Key Takeaways

  • A verdict of not guilty on a drugging charge does not necessarily undermine the complainant's credibility on a related sexual assault charge, where the acquittal rests solely on the evidentiary threshold for "stupefying" rather than any doubt about the complainant's account of the sexual conduct itself.

  • Tendency evidence presented by audio recording, without accompanying video, remains admissible and usable in a judge-alone trial, though the tribunal of fact must acknowledge the reduced capacity to assess demeanour.

  • Following Prouten v Chapman [2021] NSWCA 207, the District Court noted the inherent limitations of demeanour as a tool for assessing credibility, applying that caution to all witnesses including tendency witnesses.

  • Complaint evidence made approximately 34 years after the alleged offending can still carry evidential weight, both as to the truth of the allegations and as to the complainant's credibility, where the circumstances of the disclosure support its reliability.

  • Where a judge-alone trial involves two counts tried together for convenience, the court must treat them as separate trials and consider the elements of each charge independently, without any compromise between verdicts.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW)

Cases
- Prouten v Chapman [2021] NSWCA 207