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Court of Criminal Appeal 6 June 2025

Dawson v R

[2025] NSWCCA 85

Sexual offences

Citation: Dawson v R [2025] NSWCCA 85
Court: Court of Criminal Appeal, NSW
Date: 6 June 2025
Judges: Stern JA (majority); McNaughton J (agreeing with Stern JA); Hamill J (agreeing on grounds one and two, dissenting on ground three)

Background

The applicant was convicted following a judge-alone trial of one charge of carnal knowledge by a teacher, contrary to s 73 of the Crimes Act 1900 (NSW) as it then stood. The charge alleged that, on a day between 1 July and 12 December 1980 at Maroubra, he unlawfully and carnally knew the complainant, a girl aged between 10 and 17 years who was at that time his pupil. The complainant was 16 years old at the relevant time. The applicant was sentenced to three years' imprisonment with a two-year non-parole period, to commence in 2039 given his existing custodial sentence.

The sole contested issue at trial was timing: did the first instance of sexual intercourse occur while the applicant was the complainant's year 11 Sports Coaching teacher in 1980, or did it occur after that year had ended? The complainant was the only witness to give direct evidence on this question.

Two categories of evidence bore on the timing issue. The first concerned whether the applicant first kissed the complainant during driving lessons he gave her, and whether those lessons commenced before or after she obtained her learner's licence. The second concerned the timing of the complainant's attendance at fitness classes run by the applicant and his brother. Both bodies of evidence had the potential to affect whether the critical event fell within the indictment period.

  • Whether the trial judge erred by treating the driving lesson evidence and the fitness class evidence only as going to the complainant's credibility, rather than also as evidence relevant to the actual timing of the first sexual intercourse.
  • Whether the trial judge correctly applied the burden and standard of proof when assessing the applicant's guilt.
  • Whether the guilty verdict was unreasonable, in the sense that the evidence as a whole was insufficient in nature or quality to exclude any reasonable doubt as to guilt.

Decision

Grounds one and two: Treatment of evidence and application of standard of proof

All three judges agreed that the trial judge did not err in her treatment of the driving lesson and fitness class evidence. The Court held that the trial judge's references to the "reliability" of evidence properly encompassed both its bearing on the complainant's credibility and its bearing on whether the timing of the first sexual intercourse could be established to the requisite standard. The trial judge did not treat these bodies of evidence as going solely to credibility; she weighed them as part of the overall assessment of whether the Crown had proved guilt beyond reasonable doubt.

On the driving lesson evidence specifically, the majority found that the trial judge's observation that it was "open" to conclude the complainant held her learner's licence during the relevant period was not a bare credibility finding. Rather, the judge identified two competing possibilities from the evidence and weighed them in the balance when assessing proof. No error was established in that reasoning process.

On the fitness class evidence, the trial judge expressly found that the complainant had been inaccurate about the timing of those classes and that her evidence on that point was unreliable. Stern JA identified two ways the fitness class evidence could have generated a reasonable doubt: it could have undermined the complainant's reliability as a whole, or it could have suggested the grooming process began only in 1981. The trial judge addressed both possibilities in her reasons, and the Court found no error.

Ground three: Unreasonable verdict

The majority (Stern JA and McNaughton J) dismissed the unreasonable verdict ground. They noted that, although the trial judge was in no better position than the Court of Criminal Appeal to assess the reliability of the complainant's evidence, she was plainly better placed to assess credibility from having seen and heard the witnesses. The evidence supporting the complainant's account of timing was characterised as strongly corroborative, admitting of no reasonable alternative inference. Minor inaccuracies in peripheral details were to be expected given the passage of time and did not undermine the central element of the complainant's account. Viewed as a whole, the evidence was sufficient in nature and quality to exclude any reasonable doubt.

Hamill J dissented on this ground. His Honour considered that the complainant's account of the sequence of events concerning timing did not withstand scrutiny in certain respects and was contradicted or called into question by other evidence. He found that the supporting evidence, taken at its highest, did not establish to the exclusion of all other possible inferences that intercourse occurred in 1980. He also observed that the forensic disadvantage caused by delay was substantial, given the precise nature of the disputed timing issue and the inability of investigators to obtain potentially relevant evidence. Hamill J would have allowed the appeal, quashed the conviction, and entered a verdict of not guilty.

Orders Made

  • Time to file the notice of appeal extended.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that, in a judge-alone trial, a trial judge's assessment of the "reliability" of a witness's evidence on a disputed factual issue encompasses both its bearing on the witness's credibility and its bearing on whether a fact has been proved to the requisite standard. Treating those as distinct concepts does not produce error where the judge's reasoning addresses both dimensions.
  • Where competing possibilities arise from a body of evidence, no error is established merely because the trial judge characterised the evidence as leaving both possibilities "open," provided the judge went on to weigh those possibilities against the whole of the evidence in determining whether guilt was proved beyond reasonable doubt.
  • In assessing whether a judge-alone verdict was unreasonable, an appellate court retains a more limited advantage over a trial judge on questions of witness credibility than on questions of reliability drawn from the record. The distinction, confirmed here by reference to Dansie v The Queen and M v The Queen, remains significant to the scope of appellate intervention.
  • Peripheral inaccuracies in a complainant's account, assessed in context against the passage of time, do not necessarily undermine the essential elements of that account for the purposes of a reasonable verdict inquiry.
  • The dissent illustrates that, even within an agreed legal framework, the sufficiency of indirect or supporting evidence to exclude a reasonable doubt as to a precise temporal fact can generate genuine disagreement at appellate level, particularly in prosecutions involving substantial historical delay.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), s 73
- Criminal Procedure Act 1986 (NSW), s 132

Cases
- Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Dawson v R [2024] NSWCCA 98
- Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15; 98 ALJR 644
- Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086
- HO v The King [2023] NSWCCA 245
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Passmore v R [2023] NSWCCA 65
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- R v Dawson [2022] NSWSC 1131
- Xu v R [2023] NSWCCA 93