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District Court 27 October 2023

R v Williams

[2023] NSWDC 490

Sexual offences
CRIMINAL LAW TRIAL BY JUDGE ALONE TWO COMPLAINANTS BUGGERY CROWN RELIANCE UPON TENDENCY EVIDENCE LIES AS CONSCIOUSNESS OF GUILT

Citation: R v Williams [2023] NSWDC 490
Court: District Court of New South Wales
Date: 27 October 2023
Judge: Abadee DCJ

Background

The accused faced 16 counts on indictment relating to alleged historical sexual offences committed in the late 1970s and early 1980s in the Hunter region of New South Wales. The charges involved two complainants: a female complainant (KA), who was alleged to have been aged between 8 and 10 years at the relevant times, and a male complainant (RR, formerly WS), who was the subject of the majority of the charges. The offences alleged included repeated indecent assaults and, in relation to the male complainant, one count of buggery.

The trial proceeded before Abadee DCJ sitting alone, without a jury. The Crown relied on tendency evidence and also sought to use alleged lies told by the accused as evidence of consciousness of guilt. The accused's central position was a general denial that the conduct alleged had occurred.

At the close of the Crown's case, the Crown and the accused jointly applied for directed acquittals on three counts (counts 1, 7, and 8). Abadee DCJ granted those acquittals on 25 October 2023, leaving 13 counts to be determined.

  • Whether the Crown had proven beyond reasonable doubt that the accused committed the acts of indecency alleged against KA (counts 2 to 5).
  • Whether the Crown had proven beyond reasonable doubt that the accused committed the acts of indecency alleged against RR across the various charged occasions and locations (counts 6, 9, 10, 11, 12, 13, 14, and 16).
  • Whether the accused committed an act of buggery with RR on 22 May 1982 (count 15).
  • The proper use of tendency evidence adduced by the Crown to establish a propensity to commit sexual acts of the kind alleged.
  • Whether lies attributed to the accused could be used as evidence of consciousness of guilt.
  • The legal elements of the relevant historical offences under sections 76, 79, 81, and 81A of the Crimes Act 1900 (NSW), as they applied at the time of the alleged offences.

Decision

Abadee DCJ carefully directed herself on the relevant legal principles applicable in a judge-alone trial, consistent with the requirements of the Criminal Procedure Act 1986 (NSW). This included directions on the elements of each historical offence, the standard and burden of proof, the proper use of tendency evidence, and the conditions under which lies could permissibly be treated as evidence of consciousness of guilt.

On the counts relating to KA (counts 2 to 5), the court returned verdicts of not guilty. On several of the earlier counts relating to RR (counts 6, 9, 10, and 11), the court also returned verdicts of not guilty. The reasons reflect the difficulties inherent in establishing, to the criminal standard, offending said to have occurred over multiple occasions and locations across a lengthy period some four decades prior to trial.

However, on the counts relating to incidents involving RR from late 1981 through to 22 May 1982 (counts 12 to 16), the court was satisfied beyond reasonable doubt that the accused committed the offences charged. Count 12 involved an act of indecency at Blacksmiths between December 1981 and February 1982. Counts 13, 14, and 16 involved separate acts of indecency on 22 May 1982 at Belmont, including exposing the complainant's penis, licking and kissing it, and ejaculating on the complainant's back and buttocks. Count 15, on that same date, involved the accused inserting his penis into the complainant's anus, constituting buggery.

There was no dispute that, if those specific acts occurred as found, they satisfied the relevant elements of the charged offences. The court convicted the accused on counts 12 through 16 inclusive.

Orders Made

  • Directed acquittals entered on counts 1, 7, and 8 (25 October 2023).
  • Not guilty verdicts entered on counts 2, 3, 4, 5, 6, 9, 10, and 11.
  • Guilty verdicts entered on counts 12, 13, 14, 15, and 16.
  • The accused convicted on counts 12 to 16 inclusive.

Key Takeaways

  • In a judge-alone criminal trial, the court must formally direct itself on the elements of each offence and the applicable evidentiary principles, even where satisfaction of certain elements is not in dispute. This requirement was confirmed by reference to Schoffel v R [2023] NSWCCA 88.
  • Tendency evidence in historical sexual offence trials requires careful and separate treatment as a matter of law. Its use is governed by the Evidence Act 1995 (NSW), and the court applied the principle that tendency evidence can be cross-admissible across charged counts.
  • Alleged lies by an accused may only be used as consciousness of guilt evidence where specific conditions are satisfied, including that the lies were deliberate, related to a material issue, and were not explicable by innocent reasons.
  • A partial outcome of this kind illustrates that, across a large indictment spanning multiple occasions, locations, and complainants, the Crown may establish some charges to the requisite standard while falling short on others. The evidence supporting each count must be assessed individually.
  • Historical offences under sections 79, 81, and 81A of the Crimes Act 1900 (NSW) carry their own distinct elements. "Buggery" required proof of penile-anal intercourse with another male; "procuring" under section 81A required proof that the accused intentionally took steps to bring about the commission of an act of indecency by another male.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 76, 79, 81, 81A, 97, 97A
- Criminal Procedure Act 1986 (NSW), ss 16, 161A, 293A, 294
- Evidence Act 1995 (NSW)
- Civil Liability Act 2002 (NSW), s 3B
- Victims' Rights and Support Act 2013 (NSW), ss 35, 36, 39

Cases:
- Schoffel v R [2023] NSWCCA 88
- Arizabaleta v R [2023] NSWCCA 217
- Park v R [2023] NSWCCA 71
- JS v R [2022] NSWCCA 145
- Haile v R [2022] NSWCCA 71
- W v R [2014] NSWCCA 110
- PWB v R [2011] NSWCCA 84
- JJB v R [2006] NSWCCA 126
- DPP v Knight [2006] NSWSC 646
- R v Bauer (2018) 266 CLR 56
- Robinson v R (No.2) (1991) 180 CLR 531