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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
Date: 06 June 2025
Judge(s): Stern JA at [1]; Hamill J at [96]; McNaughton J at [137]

Background

The applicant was convicted after a judge-alone trial of one count of carnal knowledge by a teacher, contrary to s 73 of the Crimes Act 1900 (NSW). The charge alleged that on a day between 1 July 1980 and 12 December 1980, the applicant unlawfully and carnally knew the complainant, then aged 16, who was at the time his pupil in a year 11 Sports Coaching class at Cromer High School. He was sentenced in September 2023 to three years' imprisonment with a non-parole period of two years, to commence in 2039 (consecutive to a sentence he was already serving).

It was not in dispute that the applicant and the complainant had engaged in sexual intercourse while he was her teacher and she was his student. The sole issue at trial, and on appeal, was whether that sexual intercourse first occurred before 12 December 1980, being the end of the school year and the last date on which the complainant was the applicant's pupil in year 11. No defence evidence was adduced at trial.

The applicant sought leave to appeal out of time, pressing three grounds of appeal against the conviction. The Court (Stern JA and McNaughton J in the majority, Hamill J dissenting on ground 3) dismissed the appeal.

Legal Issues

  • Whether the trial judge erred by taking evidence about the timing of the first kiss (the "driving lesson evidence") into account only when assessing the complainant's credibility, rather than also on the substantive question of whether guilt was proved beyond reasonable doubt
  • Whether the trial judge made a similar error regarding the complainant's evidence about attending fitness classes in 1980 (the "fitness class evidence")
  • Whether the verdict of guilty was unreasonable in circumstances where the complainant's evidence as to the timing of the first instance of sexual intercourse was in certain respects unreliable and not significantly corroborated

Decision

Grounds 1 and 2: Treatment of the driving lesson evidence and fitness class evidence

The applicant contended that the trial judge took the disputed timing evidence into account only on credibility, not on the ultimate question of whether the Crown had proved its case beyond reasonable doubt. Stern JA rejected this. Her Honour found that the trial judge had directed herself carefully on the burden and standard of proof, expressly confirmed she had kept those directions in mind, and was plainly aware that the driving lesson evidence went to the fundamental issue of guilt (at [31]-[39]). The trial judge's references to "reliability" encompassed both honesty and the capacity of the evidence to sustain the verdict, and her Honour had set out all relevant evidence before reaching her conclusion (at [26], [76]).

On the driving lesson evidence, the trial judge had found that it was open on the evidence to conclude that the complainant did or did not hold her learner driver's licence during the relevant period, and was not required to make a finding either way on that intermediate question (at [54]). On the fitness class evidence, the trial judge found the complainant's account unreliable and mistaken but did not find she had not attended at all in 1980 (at [68]-[69]). Stern JA was satisfied the trial judge had regard to both categories of evidence when assessing guilt, and found no error (at [60], [73], [76]-[77]). Hamill J and McNaughton J agreed that grounds 1 and 2 could not be sustained (at [96], [137]).

Ground 3: Unreasonable verdict

The majority (Stern JA and McNaughton J) dismissed this ground. Applying the principles in Dansie v The Queen (2022) 274 CLR 651, Stern JA conducted an independent review of the evidence. She was satisfied that the first kiss occurred while the complainant was a year 11 student and that the first act of sexual intercourse followed within the same or the following week, before the end of the school year (at [85]-[86]). Her Honour placed particular weight on an incident that occurred between the end of the school year and the start of the following school year, on observations of the applicant and complainant at school, on the complainant's disclosure that the applicant wished to marry her, and on the complainant's evidence about the timing relative to when she began babysitting (at [87]-[89]). While the possibilities raised by the driving lesson and fitness class evidence could not be resolved, they did not, when weighed against the evidence as a whole, give rise to a reasonable doubt (at [91]-[94]). McNaughton J agreed it was well open to the trial judge to be satisfied beyond reasonable doubt (at [137]).

Hamill J dissented. His Honour undertook an independent review and was not satisfied beyond reasonable doubt that sexual intercourse had occurred before 12 December 1980 (at [97], [123]). He accepted the complainant was an honest witness but found her timing evidence did not withstand scrutiny in certain respects (at [99], [124]). The supporting witness evidence was deficient: each witness was recounting events more than four decades later, and their observations proved intimacy and attraction but not, to the requisite standard, that sexual intercourse had occurred in 1980 (at [125]-[127]). Hamill J gave significant weight to the forensic disadvantage the applicant suffered from the delay between the alleged offending and trial, and concluded that the reasonable doubt he harboured could not be resolved by deference to the trial judge's advantage in seeing and hearing witnesses (at [129], [133]-[135]).

Orders Made

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

Key Takeaways

  • A trial judge in a judge-alone trial is not required to make a finding on an intermediate fact (such as whether a first kiss occurred before or after a particular date) where the evidence raises competing possibilities. It is sufficient that the judge weighs all of those possibilities when determining whether the Crown has proved guilt beyond reasonable doubt (at [54], [59]).

  • Where a trial judge directs herself on the burden and standard of proof and expressly confirms having borne those directions closely in mind, an appellate court may infer that she brought all relevant evidence to bear on the ultimate question of guilt, even where her judgment does not separately re-examine each piece of evidence when stating conclusions (at [33]-[39], [76]).

  • Applying Dansie v The Queen (2022) 274 CLR 651, when conducting an independent review on an unreasonable verdict ground in a judge-alone trial, a court of criminal appeal defers to the trial judge's findings on credibility but exercises independent judgment on reliability and accuracy as to fine detail, particularly where the passage of time is the source of unreliability rather than demeanour (at [83], [134]-[135]).

  • The significant passage of time between alleged conduct and trial can weigh heavily in an appellate unreasonable verdict analysis, particularly where the disputed question is whether conduct occurred before a very specific date and the supporting evidence is affected by the same forensic disadvantage (at [129], [133]).

  • A 2-1 majority of the Court of Criminal Appeal confirmed the conviction, with the dissent illustrating that a finding of honesty in a complainant's evidence does not automatically resolve doubts arising from unreliability as to the precise timing of events when that timing is an essential element of the offence (at [99], [123]-[127]).

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