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 aged 58 at the time of the alleged offence, was convicted in the Liverpool Local Court of assault with act of indecency contrary to s 61L of the Crimes Act 1900. The complainant, then aged 19, was the pastor's church assistant and alleged he indecently assaulted her during an evening visit to his residence on 28 January 2013. The appellant acknowledged giving her a back massage but denied any indecent conduct.
The complainant made a complaint to a fellow pastor the following day and compiled a handwritten account shortly after (Exhibit 11). She initially withdrew her complaint following a meeting with the appellant's wife. A formal police statement was not made until October 2020, more than seven years after the alleged incident.
The magistrate convicted the appellant in December 2022, finding the complainant to be a credible and accurate historian, and the appellant's evidence "quite underwhelming." The appellant appealed against both conviction and sentence.
Legal Issues
- Whether the magistrate denied the appellant procedural fairness by making adverse credit findings based on observations of his conduct in the body of the court without giving him an opportunity to respond
- Whether the magistrate's remaining credit findings against the appellant were open on the evidence
- Whether, following any error in the credit assessment, the District Court had a reasonable doubt as to the appellant's guilt
Decision
Ground 1: Denial of Procedural Fairness
It was common ground that the magistrate did not alert the appellant to his intention to use observations of the appellant's in-court conduct as the basis for an adverse credit finding. The District Court noted it is well settled that this failure amounts to a denial of procedural fairness (at [34]-[35]). Because the matter cannot be remitted to the magistrate, and because the tainted credit finding could not be disentangled from the remaining credit findings, the Court found it necessary to set aside all of the magistrate's credit findings concerning the appellant (at [37]-[42]).
Remaining Credit Findings
Even putting aside the procedural fairness error, the District Court found the magistrate's other adverse credit findings did not withstand scrutiny (at [38]). The finding that the appellant interrupting his own counsel during evidence-in-chief damaged his credibility was rejected as irrational, given the many innocuous reasons a witness might speak over a lawyer (at [39]). The finding about the phrase "How are you really going?" was characterised as equivocal and insufficient to rationally affect credit (at [40]). The magistrate's characterisation of the appellant's evidence about the massage as "probably inappropriate" was found to be an unfair and inaccurate account of what the appellant actually said, which, read in context, constituted an unequivocal acceptance of impropriety (at [41]).
Independent Assessment: Reasonable Doubt
Having set aside the credit findings, the District Court conducted its own assessment of the evidence and identified a combination of factors generating a reasonable doubt as to the appellant's guilt (at [44]). The appellant was consistent in his denials across a recorded police interview and his court evidence, and his account was plausible with no objective evidence to contradict it (at [45]). His good character, attested to even by the complainant and her mother, weighed in his favour (at [46]). The significant delay in complaint caused forensic disadvantage, including the loss of relevant text messages and the inability to test the circumstances in which Exhibit 11 was created and later withdrawn (at [48]). The magistrate was found to have treated contemporaneity as a proxy for reliability in relation to Exhibit 11 without adequate examination of the circumstances of its creation (at [49]). There were also inconsistencies in the complainant's evidence going to the heart of the alleged indecent assault, and concerns about whether her evidence represented genuine recollection or reconstruction (at [49]-[51]).
Orders Made
- Appeal allowed
- The conviction and penalty imposed by the magistrate are set aside
Key Takeaways
- A magistrate who uses observations of an accused's conduct in the body of the court to make an adverse credit finding, without first giving the accused an opportunity to address those matters, commits a denial of procedural fairness (at [34]-[35]).
- Where the tainted credit finding cannot be disentangled from the remaining credit findings, and remittal is not available, the District Court will set aside all of the impugned credit findings and conduct an independent assessment of the evidence (at [37]).
- Treating a document as reliable simply because it is contemporaneous, without examining the circumstances of its creation, does not constitute the appropriate level of caution required when assessing documentary evidence (at [49]).
- On a s 18 Crimes (Appeal and Review) Act 2001 appeal, the requirement to demonstrate error does not reverse the onus of proof; the prosecution continues to bear the burden of establishing guilt beyond reasonable doubt at all times (at [21]).
- Inconsistency, interrupted cross-examination, and equivocal testimony fragments do not automatically provide a rational basis for an adverse credit finding; each must be capable of logically bearing on the credibility assessment (at [39]-[41]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Crimes (Appeal and Review) Act 2001
- Criminal Procedure Act 1986
- Evidence Act 1995
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