Overberg v DPP [2025] NSWDC 18

District Court New South Wales

Medium Neutral Citation: Overberg v DPP [2025] NSWDC 18 Hearing dates: 11 and 12 December 2024 Decision date: 07 February 2025 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Conviction Appeal allowed - pursuant to s s20 of the Crimes (Appeal and Review) Act, the convictions and aggregate term of imprisonment are set aside Catchwords: CRIME - Conviction appeal - three offences of indecent sexual assault Legislation Cited: Crimes Act 1900 (NSW), s81; Crimes (Appeal and Review) Act 2001 (NSW), ss18(1) and 20. Cases Cited: R v Court [1998] 2 All ER 221; R v Harkin (1989) 38 A Crim R 296; Day (a pseudonym) v R [2022] NSWDC 594 Category: Principal judgment Parties: Theodore Overberg (Appellant)

Rex (DPP) Representation: Mr Thangaraj SC with Mr Haverfield (Counsel for the accused)

Mr Harper (ODPP - Respondent) File Number(s): 2020/00254180 Publication restriction: Nil Decision under appeal Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 09 January 2024 Before: Wright LCM File Number(s): 2020/00254180

Introduction 1. On 14 July 2023, following a contested hearing, Father Theodore Overberg (the accused) was found guilty and convicted in the Local Court (Wright LCM) of three offences of indecent sexual assault (H75360240, sequences 1, 2 and 3). 2. Each sequence had a different complainant. 3. The offences involved alleged contraventions of (the then) s81 of the Crimes Act 1900 (NSW). 4. On 9 January 2024, the Local Court imposed sentence on the accused for each offence. 5. Later on 9 January 2024, the accused filed a notice of appeal to this Court. On its face, that appeal was limited to the convictions only. 6. The hearing in the Local Court (exclusive of the sentence aspect of the proceedings) was conducted over 7 days (22-25 August 2022; 22-23 May 2023; and 14 July 2023), and the transcript of the oral evidence ran to approximately 350 pages. Fifteen exhibits were tendered and thirteen documents marked for identification. 7. On 11 and 12 December 2024, I heard the accused's appeal against his convictions. In the appeal, the Crown was represented by a solicitor advocate, Mr Harper; and the accused was represented by Mr Thangaraj SC with Mr Haverfield. 8. Before that hearing, the parties helpfully agreed that the issues in the appeal could be ventilated without the Court having to read the totality – or even most – of the transcript of the evidence in the Local Court. To a very considerable extent, this was made possible by the thorough (and agreed) summary of that evidence undertaken by the solicitor advocate for the Crown (cf MFI-3 in the appeal). 9. In the result, the specific material before the Court for consideration on the issues in the appeal were the 9 documents listed in MFI-5, together with the oral submissions made 12 December 2024.