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District Court 17 October 2023

R v Knox (A pseudonym)

[2023] NSWDC 432

Sexual offences
VICTIM UNDER THE AUTHORITY OF OFFENDER

Citation: R v Knox (A pseudonym) [2023] NSWDC 432
Court: District Court of New South Wales
Date: 17 October 2023
Judge: Priestley SC DCJ

Background

The appellant was convicted in the Local Court of six offences arising from alleged conduct during a period between April 1997 and December 2000. The charges comprised five counts of aggravated indecent assault and one count of an aggravated act of indecency. The complainants, referred to as PB and LB, were sisters and nieces of the appellant's then wife, and were aged between approximately six and twelve years old during the relevant period.

Five charges related to PB and two to LB. The allegations included the appellant rubbing his genitals against PB while seated in a beanbag, conduct in ocean surf involving physical contact with both complainants, and exhibitionism at an outdoor shower. A seventh charge, an aggravated act of indecency relating to conduct on a beach, was dismissed at first instance. The first complaint was made around 2004 or 2005, though neither complainant reported the matter to police until 2014. Court attendance notices were issued in January 2018.

The appellant appealed his six convictions to the District Court. A Crown leniency appeal was also on foot but had not yet been heard, pending the outcome of the conviction appeal.

  • Whether the District Court, conducting a rehearing under section 18 of the Crimes (Appeal and Review) Act 2001 (NSW), was satisfied beyond reasonable doubt of the appellant's guilt on each count
  • Whether the magistrate correctly applied the direction from R v Markuleski [2001] NSWCCA 290 (the requirement that, where there are multiple complainants, a jury or fact-finder must be satisfied of individual counts independently and not by a process of mutual corroboration unless tendency evidence is properly admitted)
  • Whether tendency evidence and complaint evidence was properly assessed and appropriately weighted
  • Whether the alleged conduct was capable of innocent explanation, engaging the direction from Liberato v The Queen (1985) 159 CLR 507 (which concerns how a fact-finder must approach a situation where an accused's evidence, even if not accepted, may still raise a reasonable doubt)
  • Whether the principles from Mahmood v State of Western Australia (2008) 232 CLR 397 were engaged regarding the assessment of witness credibility
  • Whether issues of possible collusion or contamination between the complainants affected the reliability of the evidence
  • Whether charges relating to LB (sequences 6 and 7) were validly before the Local Court, having regard to the limitation period principles discussed in S v The Queen (1989) 168 CLR 266

Decision

Priestley SC DCJ conducted the rehearing on the evidence before the magistrate, forming an independent view of the facts while acknowledging the advantage the magistrate held in observing witnesses directly. The court applied the standard described in McNabb v DPP [2021] NSWCA 298: whether the evidence was sufficient to establish guilt beyond reasonable doubt, with the corollary that if it was not, error on the part of the magistrate would be established.

In respect of sequences 6 and 7 (involving LB), the court found those charges were liable to be dismissed on the basis of the S v The Queen limitation argument, and would in any event have been dismissed for additional reasons identified in the reasons relating to the credibility and reliability of the evidence in those counts.

The court found that the magistrate made a number of errors, including in the application of the Markuleski direction. As a result of those errors, the tendency and complaint evidence was accorded little weight, leaving PB's evidence with little or no independent support. The court accepted that the conduct alleged was capable of innocent explanation, meaning that even if the appellant's evidence was not accepted, the Liberato direction required the charges to be dismissed. Although the court acknowledged that certain words allegedly spoken during sequences 1 and 4 were inconsistent with innocent conduct, the totality of the evidence across all counts was characterised as vague, and reasonable doubt remained.

After weighing all of the evidence and applying the correct legal directions, the court was not satisfied beyond reasonable doubt of the appellant's guilt on any of the six counts the subject of the appeal. The appeal was allowed and all six convictions were set aside.

Orders Made

  • The appeal is allowed.
  • The convictions in respect of sequences 1, 3, 4, 5, 6 and 7 are set aside.

Key Takeaways

  • Under section 18 of the Crimes (Appeal and Review) Act 2001 (NSW), a District Court judge conducting a conviction appeal rehearing must form an independent view of the facts based on the Local Court record, and must set aside a conviction where the evidence does not establish guilt beyond reasonable doubt, which necessarily implies an error by the magistrate.

  • A proper application of the Markuleski direction requires that, where multiple complainants give evidence, a fact-finder must assess each count independently; tendency evidence cannot be used as mutual corroboration unless it satisfies the applicable admissibility threshold. Failure to apply this correctly was identified as an error in the magistrate's reasoning.

  • Where alleged conduct is capable of an innocent explanation, the Liberato direction requires the fact-finder to consider whether that possibility raises a reasonable doubt, even where the accused's evidence is not accepted outright.

  • The evidentiary weight given to complaint evidence and tendency evidence is directly affected by errors in the treatment of the Markuleski direction; once those errors were corrected, the corroborative value of that evidence diminished substantially.

  • Charges in respect of LB (sequences 6 and 7) were dismissed both on the limitation argument drawn from S v The Queen and on independent grounds relating to the evidence, illustrating that multiple independent bases for dismissal can coexist.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M, 61O
- Crimes (Appeal and Review) Act 2001 (NSW), s 18
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)

Cases
- R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
- McNabb v DPP [2021] NSWCA 298
- Charara v R [2006] NSWCCA 244
- Dyason v Butterworth [2015] NSWCA 52
- Fox v Percy (2003) 214 CLR 118
- Lunney v DPP [2021] NSWCA 186
- Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1
- Liberato v The Queen (1985) 159 CLR 507
- Mahmood v State of Western Australia (2008) 232 CLR 397
- S v The Queen (1989) 168 CLR 266
- Johnson v Miller (1937) 59 CLR 467
- R v JT [2017] NSWCCA 272