Citation: R v AM [2024] NSWDC 280
Court: District Court of New South Wales
Date: 11 July 2024
Judge: Grant DCJ
Background
The accused faced a judge-alone retrial on a single count of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW), alleged to have occurred on 6 February 2022 at Auburn. The accused and the complainant had been in a domestic relationship. The accused admitted that sexual intercourse took place; the sole issue was whether the complainant consented and whether the accused knew she was not consenting (or was reckless as to that).
The retrial arose after an earlier jury trial in November 2023, at which the accused faced four counts: two counts of intimidation under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), one count of assault occasioning actual bodily harm, and the sexual intercourse count. The jury acquitted the accused of the first three counts but was unable to reach a verdict on the sexual intercourse count and was discharged.
By agreement between the parties, evidence relating to the three counts on which the accused had been acquitted was placed before the court as context evidence. The Crown acknowledged it could not rely on those allegations to prove the fourth count, and both parties agreed the accused was entitled to the full benefit of his acquittals.
Legal Issues
- Whether the Crown could prove beyond reasonable doubt that the complainant did not consent to sexual intercourse on 6 February 2022, and that the accused knew or was reckless as to her non-consent
- What effect the jury's acquittals on Counts 1, 2 and 3 should have on the assessment of the complainant's credibility in the retrial
- Whether the complainant was an honest and reliable witness, particularly given evidence of a potential motive to fabricate allegations in order to obtain a visa to remain in Australia
- The proper use of context evidence derived from counts on which an accused has been acquitted
Decision
Grant DCJ identified the critical issue as the complainant's accuracy and reliability as a witness. His Honour directed himself to apply the standard principles governing judge-alone trials under s 133 of the Criminal Procedure Act 1986 (NSW), including the burden of proof beyond reasonable doubt, the presumption of innocence, and the need for caution when a Crown case rests substantially on the evidence of a single witness.
His Honour gave full effect to the prior acquittals on Counts 1, 2 and 3, treating them as directly relevant to whether the complainant was a credible witness on Count 4. The court observed that the jury in the original trial had seen the complainant give evidence by audio-visual link and acquitted the accused of those counts; the same recorded evidence was played in the retrial, meaning the jury held no observational advantage over the judge.
The court found that the complainant had a powerful motive to fabricate or embellish allegations. The making of the allegations had enabled her to remain in Australia and pursue permanent residency. His Honour also found her conduct on the night in question inconsistent with her account: she failed to complain to her cousin who was present in the apartment that evening, despite evidence of their close relationship and her demonstrated willingness to complain to the accused's parents about his conduct.
Grant DCJ was critical of the complainant's demeanour in cross-examination. She was evasive, gave answers perceived as favourable to herself, claimed not to remember matters when confronted with inconsistencies, and at times required judicial intervention to respond to questions. His Honour rejected the Crown's submission that this evasiveness reflected limited English fluency, noting that her English was strong and that she did not use the interpreter provided. The court was not satisfied beyond reasonable doubt that the complainant was an honest and reliable witness, and accordingly returned a verdict of not guilty.
Orders Made
- Verdict of not guilty entered in favour of the accused on Count 4 (sexual intercourse without consent, contrary to s 61I Crimes Act 1900 (NSW))
Key Takeaways
- The District Court confirmed that a judge conducting a retrial must give full effect to acquittals entered by a jury in an earlier trial, and that those acquittals are directly relevant to assessing the reliability of the complainant's evidence in the subsequent proceeding.
- Context evidence relating to counts on which an accused has been acquitted may be admitted by agreement, but the Crown cannot use those allegations as proof of any remaining charge; the accused retains the full benefit of the acquittals.
- A finding of a powerful motive to lie, combined with conduct inconsistent with the alleged offences and evasive cross-examination, can be sufficient to prevent the Crown from discharging its burden of proof beyond reasonable doubt, even where sexual intercourse is admitted and only consent is in issue.
- Where a Crown case rests substantially on the evidence of a single witness, a judge sitting alone must exercise particular caution before returning a guilty verdict, as confirmed by reference to Fleming v The Queen (1998) 197 CLR 250 and related authorities.
- Claimed language difficulties do not automatically explain evasiveness in cross-examination; the court assessed the complainant's actual English proficiency in light of her conduct throughout the hearing, including her ability to critique the accuracy of translated messages.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 59(1) (assault occasioning actual bodily harm), s 61I (sexual intercourse without consent)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) (intimidation)
- Criminal Procedure Act 1986 (NSW), s 133 (judge-alone trials)
- Evidence Act 1995 (NSW)
Cases
- Fleming v The Queen (1998) 197 CLR 250
- Gilham v R [2012] NSWCCA 131
- R v Markuleski (2001) 52 NSWLR 82
- Washer v Western Australia (2007) 234 CLR 492