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District Court 9 August 2024

R v Ferguson

[2024] NSWDC 331

Sexual offences
JUDGE ALONE TRIAL.

Citation: R v Ferguson [2024] NSWDC 331
Court: District Court of New South Wales
Date: 9 August 2024
Judge: Mahony SC DCJ

Background

The accused stood trial in 2023 before a jury on an indictment containing eight counts of sexual offending. The jury returned verdicts on four counts but could not agree on the remaining four, which were then re-tried by judge alone pursuant to section 132 of the Criminal Procedure Act 1986. Because much of the evidence had been recorded at the first trial, the complainant's audio-visual evidence and the accused's recorded examination were replayed at the retrial rather than given afresh.

The complainant, a young man with diagnosed autism, mild intellectual disability, and anxiety, alleged that on the evening of 21 October 2020 he was sexually touched and subjected to fellatio by the accused on two separate occasions: first in an entertainment room and then in a shower at the Raymond Terrace home where the accused lived with his partner and her son, who was the complainant's friend.

The accused denied all sexual misconduct. His account was that any contact with the complainant's genitals was accidental and occurred during an act of "manscaping" the complainant had requested, and that the complainant had behaved in a sexualised manner that evening.

Legal Issues

  • Whether the Crown could adduce evidence from two proposed witnesses to challenge the accused's credibility under sections 108A and 108B of the Evidence Act 1995, where the accused had already given evidence by way of recorded testimony from the first trial.
  • Whether the complainant was a truthful and reliable witness whose evidence established each element of the four counts beyond reasonable doubt.
  • Whether the inconsistencies in the complainant's evidence (including regarding a machete, the extent to which his account developed over time, and details about the accused's departure from the premises) raised a reasonable doubt.

Decision

Issue 1: Crown application to adduce credibility evidence about the accused

The Crown sought to call two witnesses to give evidence contradicting three statements made by the accused: that he could not kneel, that he was "not gay," and that he did not watch pornography. The Crown argued this evidence was admissible under sections 108A and 108B of the Evidence Act 1995 to challenge the accused's credibility. The court refused the application (at [67]).

The primary reason for refusal was that the threshold in section 108A(1)(b) was not met. That provision concerns credibility evidence about a person who has "not been called and will not be called to give evidence." Because the parties had agreed that the accused's recorded evidence from the first trial would stand as his evidence in the retrial, and because he had been cross-examined on that evidence, the accused had been "called" within the meaning of the section. The Crown's submission that replayed testimony did not constitute being "called" was rejected as misconceived (at [88]-[89]).

In the alternative, even if section 108A's threshold had been met, the court found that leave under section 108B would have been required and would have been refused. The proposed evidence relating to kneeling was remote in time and resembled tendency evidence rather than credibility evidence. The statements about sexuality and pornography were too far removed from any question of bias or motive to be untruthful to be relevant under section 108B(3)(a). The court also found that the evidence could not substantially affect the assessment of the accused's credibility as required by section 108A(1) (at [90]-[91]).

Issue 2: Reliability of the complainant and proof of the four counts

The court assessed the complainant as a truthful and reliable witness in relation to each of the four offences (at [162]). His evidence was given in a generally responsive manner, and the court observed he made appropriate concessions in cross-examination. His parents' unchallenged evidence of prompt complaint, accompanied by visible emotional distress on the day after the alleged offending, was accepted as corroborating evidence that the assaults occurred (at [163]).

The court addressed each inconsistency raised by the defence. The machete evidence was characterised as having no real significance to proof of the charged elements (at [164]). The discrepancy about whether the accused left the premises on his motorbike was treated as a minor matter on which the complainant may simply have been mistaken (at [166]). Differences in the account of what occurred in the entertainment room before the bathroom incidents were of a kind specifically addressed by the statutory direction under section 293A of the Criminal Procedure Act (at [167]). The implausibility arguments regarding the complainant's return to the premises the following morning were rejected, given that the complainant had then disclosed the misconduct to Ms Shankley and the accused had subsequently apologised (at [168]).

The court found that Christine Shankley's evidence was tailored to support the accused because of their relationship and was not a reliable account of her morning conversation with the complainant (at [171]). The accused's own statements to police that he "cannot kneel" were found to lack any objective evidentiary basis (at [170]). Having accepted the complainant's evidence, the court was satisfied that each element of all four counts had been proved beyond reasonable doubt (at [172]-[173]).

Orders Made

  • Verdicts of guilty on Counts 1, 2, 3 and 4 on the Indictment.

Key Takeaways

  • Under section 108A(1)(b) of the Evidence Act 1995, credibility evidence about an accused person is not available through that provision where the accused has been "called" to give evidence. Where parties agree that recorded evidence from a prior trial stands as the accused's evidence in a retrial, and the accused was cross-examined on that evidence, the accused has been called within the meaning of the section (at [88]-[89]).

  • Even if the section 108A threshold were met, evidence of remote observations about an accused's physical capabilities or sexual history will not readily satisfy the requirement that it could "substantially affect" assessment of credibility, and may instead fall within the category of tendency evidence requiring separate admissibility analysis (at [90]-[91]).

  • Inconsistencies between a complainant's initial police account and later evidence are not automatically fatal to the Crown case, particularly where the differences concern peripheral details rather than the core elements of the alleged offences, and where the statutory direction under section 293A of the Criminal Procedure Act is engaged (at [167]).

  • Prompt complaint evidence, accompanied by observable emotional distress reported by multiple independent witnesses, was treated as capable of supporting the complainant's account as some evidence that the alleged offences occurred (at [163]).

  • A finding that a defence witness's evidence was "tailored" to assist the accused because of a personal relationship with the accused is open to a fact-finder where the content and timing of successive statements by that witness are inconsistent in ways that favour the accused (at [171]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Criminal Procedure Act 1986
- Evidence Act 1995

Cases
- Azzi v R [2013] NSWCCA 249
- Jovanovic v R (1997) 42 NSWLR 520
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- R v Al Batat & Ors (No 19) [2019] NSWSC 1297