Citation: R v Neil Duncan [2024] NSWDC 435
Court: District Court of New South Wales
Date: 9 September 2024
Judge: McGuire SC DCJ
Background
The accused was a horse enthusiast who introduced young girls from a local pony club to horse riding and camping excursions in the Kosciuszko National Park. The complainant, referred to as RN, was 13 or 14 years old in 2019 and had known the accused through her mother's friendship with him and through the pony club.
This was a re-trial before a judge alone on two counts of sexual touching. The accused had been acquitted of two related counts at the first trial, where the jury was also unable to reach a verdict on the two counts now at issue. Those remaining counts alleged that the accused intentionally touched RN on her breasts and on her genitals through her clothing while she was in her sleeping swag at the Pinch River campsite in 2019.
The defence denied the conduct entirely, challenged the credibility and reliability of RN, raised concerns about collusion between complainants, and relied on phone and data records compiled by the accused's wife in an attempt to show the accused lacked opportunity to offend during 2019.
Legal Issues
- Whether RN was a credible, reliable, and truthful witness upon whose evidence the court could safely act
- Whether RN's evidence was contaminated, concocted, or affected by collusion with other complainants
- Whether the complaint evidence (from witnesses KB and OO) was admissible and what weight it carried
- Whether the tendency evidence from three other complainants (OO, HU, and SC) established that the accused had a tendency to sexually touch female children and, if so, whether it assisted in proving the charges
- Whether the accused had an opportunity to commit the alleged offences in 2019, given the defence's reliance on telephone and data records
Decision
Credibility of RN
The court found RN to be an honest, reliable, and truthful witness and was satisfied it could safely act on her evidence to the requisite criminal standard (at [342], [370]). The court acknowledged some inconsistencies in her account, including her imprecise use of the word "always" and variations regarding swag positioning and zipper details, but found these were not of sufficient significance to undermine her credibility (at [342], [302]). Her emotional responses during evidence were considered understandable given her age and the nature of the allegations. The court expressly found that the jury's acquittals on the two related counts at the first trial did not cause it to doubt her credibility or reliability in relation to the present charges (at [368]).
Collusion and Contamination
The court was satisfied that RN's evidence was unaffected by contamination, concoction, or collusion (at [371]). The court accepted the Crown's submission that the complainants' voluntary disclosure to police of their conversations with each other was inconsistent with a coordinated attempt to fabricate allegations (at [301]). The court found no basis to infer that discussions between RN and OO contained sufficient detail to contaminate either witness's account (at [353]).
Complaint Evidence
The court accepted that RN had made complaints to both KB and OO (at [355]-[357]). It found that the timing, circumstances, and content of those complaints were consistent with what would be expected from a genuine young complainant (at [358]). The complaint evidence was treated as additional support for the truthfulness of RN's account of the sexual touching and as relevant to her credibility (at [358]-[359]).
Tendency Evidence
The court found each of OO, HU, and SC to be honest, reliable, and accurate witnesses (at [339]-[341], [353]). It found that their evidence established the accused had a tendency to engage in sexual touching of female children who were connected to him through horse riding activities (at [354]). Inconsistencies in the tendency witnesses' accounts were found to be on tangential matters that did not undermine credibility, and delays in complaining were consistent with recognised features of child sexual abuse (at [353]).
Opportunity and the Accused's Credibility
The court rejected the accused's evidence as unsatisfactory and unconvincing in numerous respects (at [349]-[351]). His claims that it was physically impossible to have touched RN in the alleged manner were found particularly unpersuasive (at [349]). His denial that he had ever said "What happens in the bush, stays in the bush" to RN could not be accepted given evidence he said it regularly to children (at [350]). The court found that the accused himself had conceded at the first trial that he went camping with RN and Z in 2019, and that the telephone record analysis, while not constituting alibi evidence, left three weekends in 2019 during which the accused could not be placed elsewhere (at [362]-[366]). The court was satisfied the Crown had established the accused had an opportunity to offend during 2019 (at [366]).
Verdicts
The court found all elements of both counts proved beyond reasonable doubt (at [373]-[375]). The accused was convicted of intentionally and sexually touching RN on her breasts, and of intentionally and sexually touching her genitals through her clothing, while she was in her swag at the Pinch River campsite in 2019, at a time when she was aged 13 or 14 years (at [374]-[377]).
Orders Made
- The accused was convicted of Count 1 (sexual touching of RN's breasts)
- The accused was convicted of Count 2 (sexual touching of RN's genitals through her clothing)
Key Takeaways
- In a judge-alone re-trial, the District Court found that a jury's earlier acquittal on related counts does not, of itself, require the trial judge to doubt a complainant's credibility in relation to remaining charges that proceed to re-trial (at [368]).
- Complaint evidence admitted in child sexual assault proceedings can be used not only to confirm consistency but also as affirmative evidence supporting the truthfulness of a complainant's account in court, provided the circumstances of the complaint are considered (at [358]-[359]).
- Where tendency witnesses give evidence of substantially similar conduct by an accused against other children in comparable circumstances, inconsistencies in peripheral details do not necessarily undermine their reliability; delays in complaint are consistent with recognised features of child sexual abuse, particularly where a power imbalance exists (at [353]).
- The District Court confirmed that phone and data records relied upon to challenge a complainant's account of opportunity require expert evidence to be given significant weight; without such evidence, records prepared by a lay witness with no relevant expertise could not function as alibi evidence (at [360], [366]).
- Where an accused's denials are contradicted by their own admissions in pretext telephone calls, contemporaneous conduct, and the evidence of other witnesses, those denials will carry little persuasive weight in a credibility assessment (at [349]-[351]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW)
Cases
- Bauer v R [2018] HCA 40
- Fleming v The Queen (1998) 197 CLR 250
- Gilham v R [2012] NSWCCA 131
- Jovanovic v R (1997) 42 NSWLR 520
- Liberato v The Queen (1985) 159 CLR 507
- R v Markuleski (2001) 52 NSWLR 82
- Waldron v R [2023] NSWCCA 128