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District Court 20 November 2025

R v ND

[2025] NSWDC 481

Sexual offences
CRIME JUDGE ALONE TRIAL SEXUAL INTERCOURSE WITHOUT CONSENT LIBERATO DIRECTION ACCUSED’S EVIDENCE NOT ACCEPTED

Citation: R v ND [2025] NSWDC 481
Court: District Court of New South Wales
Date: 20 November 2025
Judge: Fitzsimmons SC DCJ

Background

The accused faced a single count of sexual intercourse without consent under s 61I of the Crimes Act 1900, alleged to have occurred on 30 December 2021 at an apartment in Ashfield. The accused and complainant were married, and the charge arose in the context of what the complainant described as a coercive and abusive relationship. The complainant alleged the accused removed her clothing, applied lubricant, and engaged in sexual intercourse without her consent, following an exchange in which he invoked her supposed marital obligation to have sex with him.

This was a retrial on a single count. The accused had originally faced three charges of sexual intercourse without consent. A jury acquitted him on counts one and three but was unable to reach a verdict on count two, which became the subject of the retrial.

The accused successfully applied for the retrial to proceed by judge alone. The grounds included forensic disadvantage from the difficulty of adducing evidence adverse to the complainant's credibility before a jury (given that such evidence was linked to the counts on which he had been acquitted), as well as reduced cost compared with a jury trial.

  • Whether the Crown proved the charge of sexual intercourse without consent beyond reasonable doubt
  • How the Liberato direction applied in a judge-alone trial where the accused denied the offence
  • The proper treatment of evidence relating to counts on which the accused had been acquitted, admitted only for the limited purpose of assessing the complainant's credibility and reliability
  • Whether alleged admissions by the accused (in person and via WhatsApp) were made and, if so, whether they were truthful
  • The relevance and weight of tendency, relationship, and context evidence, including evidence of abusive text messages
  • The accused's good character

Decision

Fitzsimmons SC DCJ applied the Liberato direction, the framework used where an accused gives evidence denying the offence. The court considered three sequential questions: whether to accept the accused's version; whether, even if not accepted, it might be true; and, if set aside, whether the Crown had nonetheless proved guilt beyond reasonable doubt on the evidence accepted. The court ultimately was not satisfied that the Crown had proved the charge to the required standard.

The court found significant problems with the complainant's evidence. Her account contained factual errors on basic chronology, such as when the parties met and when they began living together. Her evidence was also inconsistent and at times unresponsive, including on matters such as the security arrangements at the apartment building. The court found her claim that she did not know she could report a crime by attending a police station to be implausible, characterising that evidence as difficult to accept. The court concluded the complainant was unreliable.

The accused's evidence was also not accepted. However, applying the Liberato framework, the fact that the accused's account was disbelieved did not automatically establish guilt. The court was required to ask whether the Crown's evidence, taken on its own terms, proved guilt beyond reasonable doubt.

Regarding the alleged admissions, the court acknowledged that before relying on statements made by the accused on 30 December 2021 (including in person and via WhatsApp) or on his silence in response to the complainant's accusations, it needed first to be satisfied that those admissions were made and that they were truthful. The court also directed itself that, consistent with the acquittals on counts one and three, it could not reason in a manner inconsistent with those verdicts. The evidence of those prior incidents had been admitted only to assist in assessing the complainant's credibility and reliability.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The District Court acquitted the accused after finding the complainant to be an unreliable witness, with her evidence containing factual errors, internal inconsistencies, unresponsive answers, and implausible claims about her knowledge of how to report a crime.

  • A judge-alone retrial may be ordered where an accused faces forensic disadvantage in a jury retrial arising from the interaction between earlier acquittals and the need to challenge a complainant's credibility on related matters.

  • Under the Liberato direction, rejecting the accused's evidence does not itself establish guilt. The court must still determine whether the Crown has proved its case beyond reasonable doubt on the evidence it does accept.

  • Where a jury has acquitted an accused on related counts, evidence from those counts admitted in a subsequent trial for the limited purpose of credibility assessment cannot be used in a way inconsistent with those acquittals.

  • Before relying on an accused's alleged admissions or silence as admissions, the court must be satisfied both that the admissions were made and that they were truthful.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61I
- Criminal Procedure Act 1986 (NSW)

Cases
- R v Lodhi [2006] NSWSC 648; (2006) 163 A Crim R 526
- R v Plevac (1995) 84 A Crim R 570
- Liberato v The Queen (the source of the Liberato direction, referenced throughout)