Citation: R v Maguire (No. 1) [2022] NSWDC 92
Court: District Court of New South Wales
Date: 18 February 2022
Judge: Bennett SC DCJ
Background
The accused, a male adult, faced trial in the District Court on an indictment containing 15 counts of child sexual offending. The charges related to three complainants, identified by initials to protect their identities, and were alleged to have occurred at Wyee, NSW, across a period spanning from approximately 2009 to 2017. The complainants were children ranging from approximately 8 to 14 years of age during the relevant periods, and the accused held a position of authority over each of them at the relevant times.
The charges included producing child pornography or child abuse material, grooming children by exposing them to indecent material, multiple counts of aggravated sexual intercourse with children between 10 and 14 years of age, inciting acts of indecency, and committing an act of indecency toward a child under 10 years. The offences spanned multiple provisions of the Crimes Act 1900.
The trial proceeded as a judge alone trial following an application by the defence, which the Crown consented to. Amendments to four counts were made during the trial, primarily to adjust the date ranges and, in some instances, the complainants' ages within those ranges. These amendments were not opposed by the accused, who was re-arraigned on the amended counts and maintained his pleas of not guilty.
Legal Issues
- Whether the accused was guilty of each of the 15 counts on the indictment, assessed to the criminal standard of proof beyond reasonable doubt
- Whether leave should be granted for a judge alone trial application made outside the prescribed 28-day period under s 132A of the Criminal Procedure Act 1986
- Whether amendments to the indictment (adjusting date ranges and complainant ages in counts 1, 8, 10, and 11) were appropriate and could be made without prejudice to the accused
- The credibility and reliability of the complainants' accounts, including the significance of alleged retractions or inconsistencies in their evidence
- The application of tendency and coincidence evidence principles, drawing on the Evidence (Tendency and Coincidence) Act 2020
Decision
Bennett SC DCJ granted leave for the late judge alone application under s 132A of the Criminal Procedure Act 1986. The judge was satisfied the accused had received legal advice from his counsel about the implications of a judge alone trial, the Crown consented, and no good reason existed to adjourn the matter. Adjourning for a further 28 days would have been wasteful of court and party resources, and there was no suggestion of forum shopping.
The judge carefully assessed the credibility of each complainant, noting that defence submissions placed considerable weight on alleged inconsistencies, delayed disclosures, and, in the case of one complainant (SC-A), a purported retraction made to a foster carer. The judgment engaged with those specific credibility challenges, including whether SC-A had admitted to a carer that her allegations were untrue, and whether her explanations for non-disclosure in an early recorded interview were credible. The reasons reflect a detailed analysis of witness demeanour, the circumstances of disclosure, and the overall coherence of each complainant's account.
The judgment, being the reasons delivered following a judge alone trial, sets out findings on each count in accordance with the principles applicable to judge alone trials, including the obligation to provide reasons addressing the evidence and the standard of proof. The applicable legal framework included principles from cases such as Liberato v The Queen on directions about conflicting evidence, and Zoneff v The Queen on the use of silence or conduct.
The provided text does not reproduce the final verdict on each individual count in the excerpts available, but the judgment as a whole constitutes the reasoned findings of the trial judge on all 15 counts following a contested hearing on the evidence.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under s 132A of the Criminal Procedure Act 1986, a court may grant leave for a judge alone trial application made within 28 days of trial commencement where both parties consent and no prejudice or delay justifies refusal.
- Amendments to an indictment adjusting date ranges and complainant ages during a trial may be permitted without re-trial where the accused is re-arraigned on the amended counts and does not oppose the amendments, provided the underlying allegation of misconduct remains unchanged.
- A judge alone trial requires the trial judge to provide written reasons addressing the evidence and standard of proof in a manner that demonstrates the acquittal or conviction rests on proper analysis, consistent with principles from R v Markuleski and related authorities.
- Credibility findings in child sexual assault trials may turn on fine-grained assessments of disclosure circumstances, alleged retractions, demeanour evidence, and the consistency of a complainant's account over time, rather than on any single factor.
- The District Court applied the Evidence (Tendency and Coincidence) Act 2020 in the context of a multi-complainant trial, reflecting the legislative changes introduced to govern tendency and coincidence reasoning in child sexual abuse proceedings.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61O, 66C, 66EB, 91H
- Criminal Procedure Act 1986 (NSW), ss 132, 132A
- Evidence Act 1995 (NSW)
- Evidence (Tendency and Coincidence) Act 2020 (NSW)
- Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
Cases:
- Liberato v The Queen (1985) 159 CLR 507
- Zoneff v The Queen (2000) 200 CLR 234
- R v Markuleski (2001) 52 NSWLR 82
- Fleming v R (1998) 117 CLR 250 (note: this citation as listed in the metadata appears unusual and may warrant verification)
- GG v R [2010] NSWCCA 230; 79 NSWLR 194
- Ewen v R [2015] NSWCCA 117
- Yuen v R [2015] NSWCCA 117
- R v Chonka [2000] NSWCCA 466
- R v Eade [2002] NSWCCA 257
- R v Murray (1987) 11 NSWLR 12
- R v Massie [1999] VR 542