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District Court 26 April 2024

R v GM

[2024] NSWDC 134

Sexual offences
CRIMINAL LAW CHILD SEX OFFENCES MULTIPLE COUNTS FOUR COMPLAINANTS VERDICT JUDGE ALONE TRIAL

Citation: R v GM [2024] NSWDC 134
Court: District Court of New South Wales
Date: 26 April 2024
Judge: Grant DCJ

Background

The accused, identified only as GM, faced trial in the Sydney District Court on 45 counts of child sexual offences involving four complainants. The alleged offences spanned several years between 2008 and 2013 and included charges of sexual intercourse with a child under 10, acts of indecency, and indecent assault, contrary to various provisions of the Crimes Act 1900 (NSW). The complainants were children aged as young as six years at the time of the alleged conduct.

The trial proceeded as a judge-alone trial before Grant DCJ. The accused pleaded not guilty to all counts and gave evidence denying the offences. His denials were tested in cross-examination, and he maintained them throughout.

The prosecution case included, among other things, Snapchat message exchanges and a video recording. The court assessed the accused's credibility in light of these materials and considered whether the evidence as a whole was sufficient to establish guilt beyond reasonable doubt.

  • Whether the prosecution had proved each of the 45 counts beyond reasonable doubt.
  • Whether the accused's denials could be rejected to the requisite standard.
  • How to assess the accused's credibility where parts of his evidence were found to be implausible, including his explanations of certain Snapchat messages and his account of a video recording.
  • Whether findings of implausibility in the accused's evidence, and a high degree of judicial suspicion, were sufficient to displace the reasonable doubt standard.

Decision

Grant DCJ found the accused's evidence problematic in several respects. His explanation for Snapchat messages involving one complainant was found to be implausible. A video recording (Exhibit 32) showed the accused in a position inconsistent with his stated account, and his evidence about his awareness of that video shifted during the trial, raising credit concerns.

Despite those findings, the court applied the established principle that an adverse credit finding does not automatically warrant rejection of all of an accused's evidence. The accused was treated as any other witness: parts of his evidence could be rejected and parts accepted, depending on whether those parts were worthy of acceptance. The court found it could not be satisfied that certain inconsistencies amounted to deliberate lies.

Critically, Grant DCJ distinguished between suspicion and proof. His Honour stated explicitly that while he considered it probable that the accused committed the offences and was "highly suspicious" of him, that was not the test. The standard of proof beyond reasonable doubt, described as the highest standard known to the law, required more. The court found it could not exclude the possibility that the accused's denials might be true, and was therefore obliged to acquit.

The verdicts of not guilty on all 45 counts reflect the court's strict application of the criminal standard of proof, not a finding of innocence in a positive sense.

Orders Made

  • Verdicts of not guilty entered on Counts 1 to 45.
  • The accused to be released immediately.

Key Takeaways

  • The District Court acquitted the accused on all 45 counts, not because it found his evidence credible in all respects, but because it could not be satisfied beyond reasonable doubt that his denials were false.
  • Proof beyond reasonable doubt is the highest standard known to the law: judicial suspicion, even a high degree of it, does not satisfy that standard.
  • Where an accused gives evidence and denies the offences, a court must reject those denials beyond reasonable doubt before returning a guilty verdict; it is not sufficient that guilt is probable.
  • Adverse credit findings arising from implausible explanations or inconsistent testimony do not automatically justify rejecting all of an accused's evidence; a court may accept or reject discrete parts of that evidence.
  • A judge-alone trial requires the trial judge to make all findings of fact that a jury would otherwise make, including the application of the reasonable doubt standard to the accused's denials.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 61O(2), 66A, 66A(2), 66B
- Criminal Procedure Act 1986 (NSW)
- Criminal Code Act 1995 (Cth)
- Evidence Act 1995 (NSW)

Cases:
- Fleming v The Queen (1998) 197 CLR 250
- The Queen v Bauer [2018] HCA 40