R v WHITBY [2010] NSWDC 119

New South Wales District Court

CITATION: R v WHITBY [2010] NSWDC 119

15 June 2010 - 24 June 2010 HEARING DATE(S): 28 June 2010 30 June 2010

JUDGMENT DATE: 1 July 2010

JURISDICTION: District Court Criminal

JUDGMENT OF: Berman SC DCJ

DECISION: I find the accused guilty on all 120 counts on the indictment.

CATCHWORDS: CRIMINAL LAW - Judgment and Verdict - Judge only trial - Identification - Accused alleged to have videotaped child sexual assaults

LEGISLATION CITED: Crimes Act 1900

PARTIES: The Crown David Shane Whitby

FILE NUMBER(S): DC 2009/00160346

COUNSEL: M Tedeschi QC - Crown P Young SC with N Mikhaiel - Accused

SOLICITORS: Director of Public Prosecutions Legal Aid Commission

JUDGMENT

Introduction

1 On 15 June 2010 the accused David Shane Whitby was called for trial. He was arraigned on a lengthy indictment which contained 120 charges. He pleaded not guilty to each of those charges.

Trial by Judge Alone

2 Well before the day listed for the accused's trial he had elected for trial by judge alone. An election signed by the accused and containing consent by the Director of Public Prosecutions had been filed some time ago. I viewed that election and satisfied myself, through making enquiry of the accused, that he had received appropriate legal advice before choosing to have his trial heard by a judge rather than a jury.

The Charges

3 The charges faced by the accused can be conveniently grouped as follows:

4 Count one concerned an allegation of persistent sexual abuse of a child, that child being LW1. The evidence regarding that count primarily came from the complainant herself in oral evidence in court, although the Crown relied, if necessary, on tendency evidence as well.