R v CEM [2020] NSWDC 537

District Court New South Wales

Medium Neutral Citation: R v CEM [2020] NSWDC 537 Hearing dates: 19, 20, 21, 24, 25 26, 27, 28, 31, August and 1 and 2 September 2020 Date of orders: 16 September 2020 Decision date: 16 September 2020 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: See at [265] Catchwords: CRIME — Child sex offences — Sexual assault with child <16 — Circumstances of aggravation CRIME — Child sex offences — Persistent sexual abuse of a child CRIME — Child sex offences — Sexual intercourse with child >10 <14 Legislation Cited: Evidence Act 1995 (NSW) Crimes Act 1900 (NSW) Crime Sentencing Procedure Act 1999 (NSW) Cases Cited: ARS v R [2011] NSWCCA 266 High Court in Fleming-v-R (1998) 197 CLR 250 R v Markuleski (2001) 52 NSWLR 82 R v O'Toole [2020] NSWDC 423 Pell v The Queen [2020] HCA 12 Texts Cited: Nil Category: Principal judgment Parties: Regina (Crown) Accused (CEM) Representation: Counsel: Oliver, Crown Prosecutor Carty for the Accused File Number(s): 2018/00373255 Publication restriction: Unrestricted Note: s578A Crimes Act 1900 (NSW) and; Division 3A Children (Criminal Proceedings) Act 1987 (NSW) applies to this Judgment.

Contents JUDGMENT Introduction and nature of the charges Counts 2 to 11 General Directions Sexual Assault Directions Factual findings Directions Inferences Failure to call and recall witnesses Markuleski / multiple counts Reliability warning Accusatory statements in the presence of the accused Forensic disadvantage Complaint evidence Complaint Direction Going to the truth of the facts asserted Going to credit Tendency evidence The elements of the offences Count 1: s66EA(1) Counts 3, 7 and 8: act of indecency under 61N(1) Alternative verdicts to counts 3, 7 and 8 Count 5: aggravated indecent assault under s61M(1) Alternative verdict to count 5 Count 6: aggravated sexual intercourse without consent; s61J(1) Alternative verdict for count 6 Count 9: sexual intercourse with a person above the age of 10 and under the age of 14; section 66C(1) Alternative verdict re s66C The evidence Generally Count 1. Counts 2, 4, 10 and 11 Count 3 Count 7 Count 8 Count 9 Count 6 Count 5 The last time Complaint evidence To K (though not remembered by K) Jack Pam (and X) Susan To her father To her mother Tendency evidence Y Chrissy Pell v The Queen [2020] HCA 12 Conclusions Matters to be considered Complaint and tendency evidence Frequency of X sleeping over at 1 Canada Street How often was the accused at 1 Canada Street? The availability argument Concoction Police reconstruction No evidence of counts 2, 4, 10 and 11. The last time Timing No witnesses of any inappropriate behaviour at all by the accused The reliability of the evidence of X Generally Count 5 (mattresses allegedly on floor) Count 9 (allegedly on top bunk with Fiona) Count 6 (allegedly on bottom bunk with K) Count 3 (allegedly exposes penis from verandah) Count 7 (alleged exposure when Fiona leaves room) Count 8 (alleged exposure when sitting in daughter's room) Statutory alternatives Count 1 Result VERDICTS