District Court New South Wales Medium Neutral Citation: R v MA [2024] NSWDC 288 Hearing dates: 24 May 2024 Date of orders: 24 May 2024 Decision date: 24 May 2024 Jurisdiction: Criminal Before: Newlinds SC DCJ Decision: (1) Appeal allowed. (2) If necessary, set aside the conviction entered by the Magistrate on 13 November 2023, and set aside the sentence of the Magistrate entered on 22 February 2024. Catchwords: CRIME – Appeal from conviction of sexual intercourse without consent in Local Court – Identity – Crown concession that offence not proved beyond reasonable doubt – Appeal allowed Legislation Cited: Crimes Act 1900 (NSW) s 61I Crimes (Appeal and Review) Act 2001 (NSW) s 11; s 18 Cases Cited: Charara v R [2006] 164 A Crim R 39 Dyason v Butterworth [2015] NSWCA 52 McNab v DPP [2021] NSWCA 298 Category: Principal judgment Parties: Rex MA (Appellant) Representation: Counsel: C Ervin (Crown) A Reslan (Appellant) Solicitors: File Number(s): 2021/265702 Publication restriction: Non-publication restriction JUDGMENT: Ex tempore 1. The Appellant is now aged 18, was aged 14 in November 2020. He was charged with a single offence of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). As the Appellant was a juvenile at the time, the matter was heard in the Children's Court. 2. The Appellant entered a plea of not guilty and the matter was heard by a Magistrate in the Children's Court over five days of evidence from 11 October, 13 October, 14 October 2022, 15 June 2023, and 16 June 2023. 3. After hearing submissions, the Magistrate delivered judgment on 13 November 2023, the Appellant was found guilty. Sentence was delivered on 22 February 2024. The Appellant appeals against both the conviction entered by the Magistrate and the sentence. 4. Section 11 of the Crimes (Appeal and Review) Act 2001 (NSW) provides for an appeal as a right for any person who has been convicted or sentenced by the Local Court. Section 3 defines the Local Court to include the Children's Court. 5. An appeal against conviction proceeds under s 18 by way of a rehearing on the basis of the evidence given before the Local Court subject to certain exceptions. 6. It is well understood on such an appeal, the judge on appeal forms his or her own view of the facts, recognising the considerable advantage though that Magistrates who have heard and seen witnesses have when assessing matters such as credit. See for example Dyason v Butterworth [2015] NSWCA 52. A judge is entitled to consider the reasons of the Magistrate, including as to findings of credibility: Charara v R [2006] 164 A Crim R 39. In order for an appeal to succeed, the Court needs to be satisfied that the ultimately result that the conclusion of the Magistrate in terms of a conviction is not correct: McNab v DPP [2021] NSWCA 298. 7. The Appellant has put comprehensive submissions before me in writing contained in an outline of submissions document signed by counsel for the Appellant of 17 May 2024. Those submissions mimic and expand the submissions that were made before the Magistrate. 8. In essence, the Appellant contends on conviction that the Magistrate made a number of errors both of a factual and legal nature, but fundamentally the proposition is that the totality of the evidence, even accepted at its highest, was not such that a Court could be satisfied beyond reasonable doubt of the elements of sexual intercourse without consent, contrary to s 61I(as said), the essential issue being the identification evidence to connect the Appellant with the person who did engage in a sex act with the victim. 9. The Crown, after careful consideration, has provided me also with comprehensive submissions concluding that in the Crown's submission that I ought be satisfied that the offence was not and cannot be proved beyond reasonable doubt. 10. The Crown explains that position as follows: 22. There is no dispute that one of the young persons the complainant was out with that night was the Appellant. 23. There is no dispute that the Appellant at some point in the evening had his arm around the complainant's shoulders and they were walking in a laneway together. 24. There is no dispute that the Appellant had the complainant's phone and when AE and AdS called the phone the Appellant answered and arranged for them to collect the phone at the Novotel foyer, which occurred. 25. What is in issue is that it was the Appellant who is said to have approached the complainant from behind, grabbed her shoulders, tried to bend her over forcefully and tried to insert his penis into her vagina. 26. While DNA evidence is more often than not conclusive, in the present case it unfortunately does not assist the Crown in excluding the reasonable hypothesis that it could have been one of the other young men in the alley that night who has the same 1 in 470 Y-STR profile who assaulted the complainant from behind. While the Y-STR profile matches that of the Appellant, the police unfortunately did not rule anyone else out. This was particularly crucial in a case where the complainant did not see her attacker and made the association between attacker and Appellant simply because he was the person who was trying to wake her up after she had passed out after the assault. 27. The Magistrate indicated that this is a case that required a Mahmood direction yet he did not seem to actually go beyond that. Critical witnesses not called included AE, MB; AA. The complainant's mobile phone records were also not tendered. 28. The Appellant did not hide the fact that he had been with her that night and in fact was open with others that he had her phone. It was never made clear from the evidence when it was that he came into possession of the phone and not much turns on this aspect. 29. Similarly, the fact that the Appellant was with the complainant before and after the incident does not provide proof beyond reasonable doubt that he is the person responsible for the attack. 30. While it is highly suspicious and there is evidence to suggest that it could have been him, the problem is that there are other hypotheses consistent with innocence to explain how his DNA was on the complainant and why he was in the alley with her that night. 31. The Appellant had hugged the complainant. The complainant had touched the Appellant. The issue of secondary transference is live. 32. The biggest problem with the prosecution case is this: CAD broadcast notes The notes refer to a 16-year-old female who is intoxicated and has been raped. The offender is gone. Location unknown. Patient name is H. Offender name is M friend. The notes taken by Mia Devine from the complainant are recorded as: All of a sudden in laneway. Coming from behind me. H. Get up get up. Got up and walked back to my friends. … I tried to stand up but I hit my head on the wall. Pushed from behind, Grabbed from behind. Black TN hat. I tried to turn around but he wouldn't let me. Screamed out "A". Arab, black jumper, Black or grey tracksuit pants. I fell. "Get up. Get up H". Referred to me by name. Helped me up and walked back to M & me. … Grab. Grabbed my shoulders. Both shoulders. Tried to bend me over. A: used to go to school with brother's friends… SAIK notes The history provided by the complainant to Keryn Jones, sexual assault nurse, at about 10:24am on 11/10/2020: H walked through carpark next to café and down an alleyway. She did not notice that she was being followed. In alleyway, a guy approach her from behind, grabbed her shoulders, tried to bend her over forcefully. She was near a wall and she was using the wall to try and stand up, he then pushed you over harder so your hands were on the ground but still standing up. He then pulled her underwear to the side. He put his penis in her vagina. She is unsure if he used his fingers. Unsure if he was using condom or if he ejaculated. She was calling out for A ex boyfriend to help…afterwards she fell to ground at this point he said "H, H come on get up". He helped her off the ground and walked her back to her friend group…when he helped her up she noted he was taller than her, dark hair with black TN hat, black jumper, grey/black pants. 33. The complainant said "some guy" attacked from behind – she did not nominate that guy as being the Appellant; this is true of her initial complaint to police and to the SAIK nurse. 34. Additionally, she describes the person who attacked her as wearing black or grey pants/black or grey tracksuit pants. The Appellant was clearly wearing shorts on the night in questions so her description of her attacker is inconsistent with the appearance of the Appellant that evening. And she repeated to two different people at different times that the person who attacked her was wearing pants. 35. In her evidence in chief on 15/6/2023 at T70 L24 the following exchange occurred: Q. At this point in time did you have any idea who was behind you? A. No. Q. Did you have any idea other than you telling the Court that you were in this alleyway behind Bay Street, were you aware if there was anyone else besides this person? A. No. I knew it was just one person, I didn't hear anyone speaking and I didn't feel anyone else touching me. Q. You say that you knew it was only one person, how were you able to identify it was only one person? A. Later on, I'm not too sure how long was between the two memories, but I had fallen and when I had looked up I had only seen one person. 36. At 75 L39 she continues: … like at that point I didn't know who it was, I didn't really properly understand what was happening. I just knew that I wasn't okay and that I was being hurt, and then everything goes dark again. And then I had fallen - I was on the ground on all fours and I kept hearing someone say, "H, get up, come on, H, get up", and I looked up and I saw like a hat and then I had seen MA, and he kept saying, like "Come on, H, get up", and then everything just goes dark again and then I remember walking - I'd seen S again and then after I saw S everything went dark, and then it was like I had woken up in a garage …" 37. At T79 L8 Q. You then indicated that you were on all fours, is that essentially the same position that you were during this entire incident? A. So, initially I was bent over and then the event happened and then I kind of blacked out and when I had regained consciousness I was on the ground. Q. When you say that you gained consciousness and you were on the ground, how were you positioned on the ground? A. So, I was sitting with my legs together but to the side and I was leaning on my hands 38. When describing how she identified the person as the Appellant the complainant said this at T80 L3: Q. At that point in time were you able to see anyone in the alleyway with you? A. When I was on the ground, yes, I saw a male figure, but— Q. You said you saw a hat? A. Yes, a hat. Q. What type of hat? A. It's a TN hat, like the Nike— Q. I don't, sorry, I don't know what a TN— A. Sorry. It's like a - it's this branded hat and a few people that I knew had the hat and the hat does have some like significance to how I had - I didn't like realise that it was MA because previously like we were friends and we - I would like take his hat just as a joke and so when I had seen the hat, when I was on the ground, and then I had seen his face, I knew it was definitely MA. 39. At T80 L50 the complainant's version gets a little shaky in respect of when she first saw the Appellant: Q. What was the next thing that you noticed? A. Then he had said again, "H, get up", and he looked at me straight in the face, and I recognised that it was MA. Q. How close was this person to you when he was saying these words to you? A. He was standing up, I was still on the ground and he had his hand out to try and get me up, and I am not too sure how I got up like from the ground to go back to everyone 40. Then at T81 L41: Q. What did you see? A. I saw like a male figure and he was - he was standing right in front of me and he was kind of crouched down and like he kept saying, "H, get up, H, get up", and that's all I can remember 41. At T82 L1: Q. How certain are you that it was this person MA that you'd met less than 12 months earlier, that it was him in the alleyway? A. I'm 100% sure. Q. When you looked at MA, did you notice if there was anyone else in the alleyway? A. No, I didn't. 42. There was some discussion about the significance of the Appellant's hat. However, given the complainant's description of seeing the hat once she was on the ground after the sexual assault, it loses significance in terms of the perpetrator as she does not describe the person who was sexually assaulting her as wearing a hat. It appears that any descriptions provided refer to after the assault. 43. At T86 L43 Q. You told the Court that he said to you, "Come on, H, come on, H, get up"? A. Yeah. Q. How many times do you say that he said that to you? A. I - a number of times, I just can't remember how many exactly. Q. You then said to the Court that everything went dark? A. Yes. Q. What do you mean by that? A. I'm not too sure what was happening. I - everything kind of just went like blacked out, like I don't have - like I just remember everything going black and then it's like I have skipped to like a new memory kind of. Q. Is it the case that in actual fact you lost consciousness to your knowledge? A. Yes. 44. And at T87 L31: Q. Whilst you were walking towards S, where is MA? A. I am not too sure. Q. When was the last time you saw MA? A. When I looked at him and he kept saying, H, get up, H, get up. 45. It is from seeing the Appellant after coming to that convinced the complainant that it was the Appellant who sexually assaulted her. It is likely that whoever she saw when she came to is the person she would have nominated as having sexually assaulted her. 46. The complainant herself acknowledges that she lost consciousness and she skipped to a new memory. There are portions of that evening that she has lost any memory of. 47. The blacking out after the sexual assault and clear change in her position on the ground would give the Court some doubt as to whether it was in fact the Appellant who sexually assaulted the complainant or whether he happened upon her given they had al been together in the area minutes earlier. 48. It is abundantly clear that the complainant did not see who sexually assaulted her and that she made an assumption that it was the Appellant. The versions she gave police and the nurse were that "some guy" had assaulted her. She did not tell them that it was the Appellant. She told her friends that it was the Appellant as she had just seen his face before she rejoined them. 49. Even with the forensic evidence it is submitted that this is not a matter in which the Court could safely find that the offence is proven beyond reasonable doubt and accordingly the appeal must succeed. 1. I agree, having considered the submissions of both the Appellant and the Crown and having reviewed the evidence that was before the Magistrate insofar as it is relevant to understand the submissions made by the parties, I have come to the conclusion that it would be an error to conclude beyond reasonable doubt on the evidence that was before the Magistrate, that the person who was engaged in the sexual act with the complainant was the Appellant. 2. Having come to that conclusion, the only result must be that I allow the appeal. The orders I make are: 1. Appeal allowed. 2. If necessary, set aside the conviction entered by the Magistrate on 13 November 2023, and set aside the sentence of the Magistrate entered on 22 February 2024. ********** Amendments 17 July 2024 - Accused name restricted 19 July 2024 - Further identities anonymised DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 July 2024