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District Court 6 October 2023

R v Beergah

[2023] NSWDC 464

Sexual offences
CRIME APPEALS AND REVIEWS SEXUAL TOUCHING OFFENCE WHETHER LIBERATO DIRECTION MISAPPLIED

Citation: R v Beergah [2023] NSWDC 464
Court: District Court of New South Wales
Date: 6 October 2023
Judge: Abadee DCJ

Background

The appellant was a teacher convicted in Fairfield Local Court of sexually touching a child aged between 10 and 16 years, contrary to s 66DB(a) of the Crimes Act 1900 (NSW). The alleged offending occurred between July and December 2019 in a classroom at a public school, where the complainant was a 12-year-old Year 7 student. Following a four-day hearing, the Magistrate found the charge proved beyond reasonable doubt and entered a conviction.

The appellant appealed that conviction to the District Court. His primary defence at first instance had been that no touching occurred at all, and the prosecution witnesses were motivated to lie because they wanted to remove him as a disciplinarian.

Before the appeal hearing, the appellant obtained leave under s 18(2) of the Crimes (Appeal and Review) Act 2001 (NSW) to adduce fresh evidence of good character, specifically that he had never been charged or convicted of any offence.

  • Whether inconsistencies between the complainant's evidence and other prosecution witnesses rendered the complainant's evidence unreliable
  • Whether the demonstrated dishonesty of one corroborating witness should have generated doubt about whether the complainant and other witnesses shared a motive to fabricate
  • Whether fresh evidence of the appellant's good character (no prior charges or convictions) was capable of raising a reasonable doubt, particularly where the appellant participated in an ERISP but did not give evidence at trial
  • Whether the Magistrate misapplied the Liberato direction (which concerns how a tribunal of fact should approach a conflict between an accused's denial and a complainant's account)

Decision

Abadee DCJ dismissed all grounds of appeal and affirmed the conviction. His Honour applied the established framework for District Court conviction appeals from the Local Court: the appeal is a rehearing on the transcript and exhibits, the appellant must demonstrate error (broadly understood), but the prosecution's onus of proof beyond reasonable doubt is never reversed.

On the fresh evidence of good character, his Honour admitted the evidence in a qualified form. The character evidence was limited to the fact of no prior charges or convictions, and only to conduct before the alleged offending. His Honour declined to treat post-charge good behaviour as having any probative value, reasoning that it would be unsurprising for a person charged with a serious offence to behave themselves thereafter. That limited good character evidence was insufficient to raise a reasonable doubt in the overall context of the evidence, particularly given that the appellant had elected not to give sworn evidence at trial. Where the Magistrate had accepted that touching occurred, the absence of any sworn account from the appellant as to what he was actually doing became relevant to hypotheses of innocence, consistent with the principle in Weissensteiner v The Queen (1993) 178 CLR 217.

On the corroboration and inconsistency issues, his Honour found the Magistrate was entitled to rely heavily on the immediacy of the complainant's complaint to a fellow student (MT) and MT's substantial corroboration of the rubbing. The argument that memory distortion caused the complainant to overstate the contact was rejected, as it depended on premises already found unreliable, and ignored the most probative evidence: the immediate complaint and its corroboration. The suggestion that all prosecution witnesses shared a fabricated narrative was similarly rejected.

On the Liberato direction ground, no error was established in the Magistrate's application of that principle. No ground of appeal was made out.

Orders Made

  • The appeal against conviction is dismissed.
  • The conviction is affirmed.

Key Takeaways

  • In dismissing the appeal, the District Court reaffirmed that conviction appeals from the Local Court are rehearings on the transcript, requiring the appellant to demonstrate error broadly understood, but the prosecution's burden of proof beyond reasonable doubt remains constant throughout.
  • Fresh character evidence admitted on appeal was confined to an absence of prior charges or convictions before the alleged offending. Post-charge good conduct was held to carry no probative weight.
  • Where a factfinder accepts that touching occurred and the accused has not given sworn evidence explaining the contact, Weissensteiner principles apply: hypotheses consistent with innocence may not be available to a defendant who has not offered any account of what he was doing.
  • Immediate complaint evidence and its corroboration by a witness who observed the reaction can constitute strong probative evidence capable of supporting a conviction, even where other witnesses gave inconsistent accounts on peripheral matters.
  • Appellate courts conducting transcript-based rehearings recognise the trial judge's advantage in assessing credit, and will be particularly attentive to whether disputed evidence is consistent with undisputed or incontrovertible facts, rather than conducting a free-standing review of the whole record.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 18
- Crimes Act 1900 (NSW), ss 61HB, 66DB

Cases:
- Arizabaleta v R [2023] NSWCCA 217
- Blissett v Director of Public Prosecutions (NSW) [2021] NSWCA 253
- Browne v Dunn (1893) 6 R 67
- Haile v R [2022] NSWCCA 71
- Hofer v The Queen (2021) 274 CLR 357
- Liberato v The Queen (1985) 159 CLR 507
- Lunney v DPP (2021) 105 NSWLR 236
- McNab v DPP (NSW) (2021) 106 NSWLR 430
- Park v R [2023] NSWCA 71
- R v Scott [2023] NSWDC 271
- Weissensteiner v The Queen (1993) 178 CLR 217