Citation: R v Ashcroft [2024] NSWDC 603
Court: District Court of New South Wales
Date: 19 December 2024
Judge: Abadee DCJ
Background
The appellant, a school teacher, was convicted in the Parramatta Local Court of two counts of sexual touching of a child aged between 10 and 16 years, contrary to s 66DB(a) of the Crimes Act 1900 (NSW). The Magistrate simultaneously acquitted him of three other counts of the same offence involving three further complainants. The convictions arose from incidents at two different schools.
The first conviction concerned a 14-year-old student (MR) at Nepean Creative and Performing Arts High School, where the appellant was working as a substitute teacher. MR alleged he touched her breast during a mathematics class on 17 February 2022. The second conviction involved a student (JW) at Gateway Community High School in Carlingford, where the alleged touching of her breast was said to have occurred between February and March 2021.
The appellant appealed both convictions to the District Court. On the charge involving MR, the central dispute was whether an admitted touching of her breast was intentional or accidental. On the charge involving JW, the dispute went further: whether any touching of her breast had occurred at all.
Legal Issues
- Whether the Magistrate erred in finding that the touching of MR's breast was intentional rather than accidental.
- Whether the Magistrate erred in finding that the appellant had touched JW's breast at all, given the absence of specific reference to breast touching in JW's initial complaint.
- Whether the Magistrate placed disproportionate weight on positive demeanour findings in relation to JW.
- Whether tendency evidence (including evidence of uncharged acts from a third student, PD) was properly applied to support the convictions.
- Whether the standard of proof beyond reasonable doubt was satisfied in respect of each conviction.
Decision
The charge involving MR
The Magistrate made detailed findings about the nature and extent of the contact, describing a firm palm-and-fingers touch over the full area of MR's breast lasting a couple of seconds. The District Court found no error in the Magistrate's conclusion that this touching was intentional. The court noted that where a specific result is the obvious and inevitable consequence of a deliberate act, intention to achieve that result may readily be inferred. The detailed nature of the contact, as the Magistrate described it, supported that inference.
The charge involving JW
The appellant argued that JW's failure to mention breast touching when she first made her complaint undermined her credibility and raised reasonable doubt. The District Court acknowledged that this omission was a relevant consideration but did not accept that it was fatal to the Crown case. The court found the Magistrate was entitled to treat the complainant's evidence as reliable, particularly in circumstances where the tendency evidence from other complainants (including MR and another student whose thighs had been touched) provided circumstantial support for the Crown's case regarding JW.
Tendency evidence
The Crown relied on evidence of uncharged acts involving a further student (PD) as tendency evidence, together with the evidence from the other complainants whose touching was found probable by the Magistrate (though not proven to the criminal standard). The District Court accepted this tendency evidence as reinforcing, though not independently sufficient to prove, guilt on the JW charge. The court was careful to note that tendency alone cannot establish guilt.
Demeanour
The appellant contended the Magistrate was overwhelmed by a favourable assessment of JW's demeanour to the point of impairing his reasoning. The District Court rejected this submission. Abadee DCJ found that, across multi-page reasons, the Magistrate's reliance on demeanour was proportionate and did not displace proper consideration of contested facts and incontrovertible circumstances.
Orders Made
- The appeal against conviction is dismissed.
- The convictions are confirmed.
Key Takeaways
- In dismissing the appeal, the District Court confirmed that intention to touch can be inferred from the nature and circumstances of the physical contact itself, particularly where the contact is firm, deliberate, and precisely located on an intimate part of the body.
- A complainant's omission of specific detail in an initial complaint does not automatically generate reasonable doubt; its weight depends on all surrounding circumstances, including the presence of corroborating tendency evidence.
- Tendency evidence from uncharged acts and other complainants may lawfully reinforce a finding of guilt, provided the tendency evidence is not treated as sufficient on its own to prove the charge.
- No error was established merely because a Magistrate expressed positive views of a complainant's demeanour, so long as those views formed part of a broader and coherent chain of reasoning rather than substituting for it.
- Under s 66DB of the Crimes Act 1900 (NSW), consent and knowledge of absence of consent are not elements of sexual touching of a child between 10 and 16 years; proof turns on whether the touching was intentional and whether a reasonable person would consider it sexual.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 66DB
- Criminal Procedure Act 1986 (NSW), ss 161A, 293A, 294
- Evidence Act 1995 (NSW), s 78
- Crimes (Appeal and Review) Act 2001 (NSW), s 18(1)
Cases
- Gautam v Health Care Complaints Commission [2021] NSWCA 85
- R v Scott [2023] NSWDC 271
- Lunney v DPP (2021) 105 NSWLR 236
- McNab v DPP (NSW) (2021) 106 NSWLR 430