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District Court 22 June 2023

McMartin v R

[2023] NSWDC 216

Sexual offencesAssault & violence

Citation: McMartin v R [2023] NSWDC 216
Court: District Court of New South Wales
Date: 22 June 2023
Judge(s): Scotting DCJ

Background

The appellant, a senior pastor of a church, was convicted by a Local Court magistrate of assault with act of indecency under s 61L of the Crimes Act 1900. The alleged offending occurred on the evening of 28 January 2013, when the complainant, a 19-year-old church employee who also served as the appellant's assistant, visited his residence at his request.

The complainant alleged the appellant subjected her to a range of sexual touching during that visit. The following day she made a complaint to another pastor, and shortly afterwards compiled a handwritten statement of events (Exhibit 11). She later withdrew her complaint after a meeting with the appellant's wife, also a pastor. She did not make a formal police report until October 2020, several years after her mother was made redundant from the church during the pandemic.

At the original hearing, the appellant denied the allegations and gave evidence that he had offered and administered a shoulder and back massage over the complainant's clothing, which he acknowledged was inappropriate given his position, but he denied any indecent assault. The magistrate convicted him, and he appealed to the District Court as of right.

  • Whether the magistrate denied the appellant procedural fairness by making adverse credit findings based, in part, on observations of the appellant in the body of the court, without notifying the appellant of those observations or giving him an opportunity to respond.
  • Whether the magistrate erred by failing to give himself a warning under s 165 of the Evidence Act 1995 regarding the reliability of the complainant's handwritten statement (Exhibit 11), and by placing excessive weight on that document.
  • Whether, if error was established on ground one, the District Court, upon reconsidering the evidence itself, was left with a reasonable doubt as to the appellant's guilt.

Decision

Ground 1: Procedural fairness

Scotting DCJ upheld ground one. The magistrate had made credit findings against the appellant based partly on observations of the appellant's demeanour or conduct in the body of the court, beyond simply observing him in the witness box. The District Court found this constituted a denial of procedural fairness because the appellant had no opportunity to know what those observations were, let alone to address them.

Reconsidering the evidence

Having found error on ground one, the District Court proceeded to reconsider the evidence independently, as required under the Crimes (Appeal and Review) Act 2001. The court noted several concerns. The circumstances surrounding the creation and contents of Exhibit 11 could not be tested due to the passage of time, and the complainant's references to "repressed memories" raised uncertainty about whether her account was a genuine recollection or a reconstruction. There were also critical inconsistencies in the complainant's evidence going to the heart of the alleged indecent assault, and parts of her account were inconsistent with contemporaneous notes made by another pastor. The court also noted the timing of the police complaint, which followed the complainant's mother being retrenched in circumstances where she was unhappy with the appellant.

Importantly, the District Court was careful to note that it was not disturbing the magistrate's adverse credit findings about the complainant. Despite those findings remaining in place, the court concluded that sufficient doubt existed about the appellant's guilt to require an acquittal.

Ground 2: The s 165 direction

The court did not find it necessary to formally determine ground two, but noted in passing that the argument had some merit. The court indicated it had in any event approached Exhibit 11 bearing in mind the factors that could affect its reliability.

Orders Made

  • Appeal allowed.
  • Conviction and penalty imposed by the magistrate set aside.

Key Takeaways

  • A magistrate's reliance on observations of an accused made outside the witness box, without affording the accused an opportunity to address those observations, can constitute a denial of procedural fairness sufficient to establish error on appeal.
  • An appeal under s 18 of the Crimes (Appeal and Review) Act 2001 requires demonstration of factual, legal, or discretionary error, but establishing such error does not reverse the prosecution's onus of proving guilt beyond reasonable doubt.
  • Where the District Court identifies error and reconsiders the evidence, it may reach an acquittal even while leaving intact adverse credibility findings made by the magistrate about the complainant, provided independent doubt about guilt exists.
  • The mere contemporaneous nature of a document does not, without more, render its contents reliable, and a tribunal of fact should apply appropriate caution when assessing such documents, particularly where the circumstances of their creation cannot be tested.
  • Under s 20 of the Crimes (Appeal and Review) Act 2001, the District Court on a conviction appeal has no power to remit the matter to the Local Court; its options are limited to setting aside the conviction or dismissing the appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61L
- Crimes (Appeal and Review) Act 2001 (NSW), ss 18, 20
- Criminal Procedure Act 1986 (NSW), ss 293A, 294AA
- Evidence Act 1995 (NSW), s 165

Cases:
- AG v Director of Public Prosecutions [2015] NSWCA 218
- Charara v R [2006] NSWCCA 244
- Fox v Percy (2003) 214 CLR 118
- Gardiner v R [2023] NSWCCA 89
- Gianoutsas v Glykis [2006] NSWCCA 137
- Lumney v Director of Public Prosecutions [2021] NSWCA 186
- McNab v Director of Public Prosecutions [2021] NSWCA 298