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District Court 16 June 2023

R v Howard (a pseudonym)

[2023] NSWDC 210

Sexual offences

Citation: R v Howard (a pseudonym) [2023] NSWDC 210
Court: District Court of NSW
Date: 16 June 2023
Judge: Sutherland SC DCJ

Background

The accused (referred to by the pseudonym Richard Howard) stood trial on five counts of indecent assault of a child, contrary to s 61M(2) of the Crimes Act 1900 (NSW). The complainant (referred to by the pseudonym John Bush) was the accused's stepson and was between four and seven years of age at the time of the alleged conduct. A statutory non-publication order applied to protect the complainant's identity.

The trial proceeded as a judge-alone trial after the accused elected for that mode and the Crown consented. The accused did not give evidence, which the court noted could carry no adverse inference of any kind.

The Crown case rested substantially on the complainant's evidence, supported by complaint evidence from relatives. Before trial, the court ruled that cross-examination of the complainant about alleged sexual conduct by persons other than the accused was permissible under s 294CB(4) of the Criminal Procedure Act 1986 (NSW).

  • Whether the Crown had proved each count beyond reasonable doubt, given the case turned almost entirely on the complainant's reliability as a witness
  • How to approach delay in complaint and the significance of prior complaints made about other persons but not about the accused
  • Whether the complainant's evidence was sufficiently honest and accurate to sustain a conviction on any individual count
  • The proper approach to a judge-alone trial, including the application of the Liberato direction (where an accused denies the allegation, the question is not simply who is believed, but whether the Crown has proved its case beyond reasonable doubt)

Decision

Sutherland SC DCJ identified the central question as whether the complainant was both an honest and accurate witness. The court found multiple reasons to doubt the reliability of his testimony across all five counts. Three specific internal contradictions in the complainant's evidence were identified and treated as creating serious doubt about its reliability.

The court also noted a significant pattern concerning memory. The complainant had previously alleged sexual misconduct by other named persons, but then appeared to lose memory of those earlier allegations. Separately, he claimed to have recovered memories of the accused's conduct through "flashbacks" at a later point. The court found this contrast raised serious concerns about the reliability of his memory.

Delay in complaint was an additional complicating factor. The complainant had multiple opportunities, including interactions with FACS caseworkers and an extended period in foster care, to disclose the allegations against the accused. He raised allegations about other persons during this period but made no complaint about the accused until later. The court found this pattern difficult to reconcile with the Crown case.

Further concerns arose from evidence of the complainant's suggestibility and the possible influence of the attitude of relatives towards the accused, which a FACS caseworker had specifically recorded. The court could not exclude the possibility that the complainant's account had been contaminated. Taking all these matters together, the court was comfortably satisfied that reasonable doubt existed as to the accused's guilt on each count, and returned a verdict of not guilty on all five charges.

Orders Made

  • Verdict of not guilty entered on each of the five counts in the indictment.

Key Takeaways

  • Where a Crown case rests substantially on the evidence of a single complainant, a conviction requires satisfaction beyond reasonable doubt that the complainant is both honest and accurate; doubt as to either quality is sufficient to warrant acquittal.
  • Internal contradictions in a complainant's evidence, particularly concerning specific factual details, can individually and collectively constitute a basis for reasonable doubt.
  • Delay in complaint is not automatically fatal to a Crown case, but becomes more difficult to accept where the complainant disclosed allegations against other persons during the same period while omitting allegations against the accused.
  • The District Court applied the principle that an accused's election not to give evidence cannot be used to fill gaps in the Crown case, strengthen the Crown's position, or be treated as any form of admission.
  • Evidence of suggestibility and the possible influence of third parties on a child complainant's account can support a finding that the reliability of the complainant's memory cannot be sufficiently established to prove guilt beyond reasonable doubt.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 578A(2)
- Criminal Procedure Act 1986 (NSW), ss 132, 133, 294CB(4)

Cases:
- AK v Western Australia (2008) HCA 8; (2008) 232 CLR 438
- Fleming v R (1998) 197 CLR 250
- Liberato v The Queen (1985) 159 CLR 507
- R v Murray (1987) 11 NSWLR 12