Director of Public Prosecutions (NSW) v AB [2015] NSWLC 29

Local Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v AB [2015] NSWLC 29 Hearing dates: 8, 9, 10 October 2014, 6 February 2015 Decision date: 31 March 2015 Jurisdiction: Criminal Before: DCM C O'Brien Decision: Charge dismissed Catchwords: CRIMINAL PROCEEDINGS - indecent assault – assessment of witness' evidence – oath v oath – child witnesses – complaint evidence – context evidence - demeanour Legislation Cited: Crimes Act 1900, s 61M(2) Evidence Act 1995, ss 66, 165A Cases Cited: Cubillo v The Commonwealth (2000) 174 ALR 97 ES v R(No 1) [2010] NSWCCA 197 Jones v Hyde (1989) 85 ALR 23 Liberato v R (1985) 159 CLR 507 Papakosmas v R (1999) 196 CLR 297 R v Murray (1987) 11 NSWLR 12 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) AB (the accused) Representation: Solicitors: Mr B Barrack (for the DPP) Mr W Smith (for the accused) File Number(s): 2014/12156 Publication restriction: Pseudonyms have been assigned to prevent the identification of any child witness

Judgment 1. The accused AB has been charged with one count of indecent assault upon a person under the age of 16 years. The charge is brought pursuant to s 61M(2) of the Crimes Act 1900. A plea of not guilty was entered to the charge and the matter proceeded before me for hearing in the Coffs Harbour Local Court over 6 days being 8, 9 and 10 October 2014 and 4, 5 and 6 February 2015. Mr Barrack Solicitor appeared for the Director of Public Prosecutions and Mr Smith Solicitor appeared for the accused. Following the completion of the evidence on 6 February 2015 I made directions for the preparation of written submissions and adjourned my decision until today. Written submissions have been received by me from both parties both in the first instance and in reply and they have been carefully considered. 2. As in any criminal hearing it is for the prosecution to prove each and every element of the offence charged beyond reasonable doubt. Unless and until the prosecution has discharged that heavy onus the accused is entitled to the presumption of innocence. The words "beyond reasonable doubt" are ordinary English words and are to be given their ordinary English meaning. No further elaboration is required or desirable. It is however to be borne in mind that suspicion, and even grave suspicion, cannot be a substitute for proof beyond reasonable doubt. 3. As in any matter it is necessary for me to assess the evidence that has been given by the various witnesses along with the documentary material that has been tendered. I am expected to use my life experience, my understanding of the community and my common sense in undertaking an assessment of the evidence, and I have of course done so. 4. In my assessment of the witnesses I have considered carefully and taken the approach set out by O'Loughlin J in Cubillo v The Commonwealth (2000) 174 ALR 97. In that case, his Honour said at [118]: … I desire, in the first instance, to make clear the approach that I have taken to the evidence of a witness where I have found some, but not all, aspects of the evidence of that witness to be unreliable. Simply because I find against a party or a witness on one issue and reject some part of the evidence of that person, it does not mean that what remains is tainted, or otherwise lacks probative force, with the consequence that I should dismiss all the evidence of that person. The principles enunciated in the cases indicate that the trial judge is entitled to believe part of the evidence given by a witness and to reject the rest. After making an assessment of the evidence, after utilising the advantage of having seen and heard all the witnesses, and after forming an impression of each, the confidence that the judge reposes in a particular witness is assessed accordingly. Where evidence has a logical probative value, a judge will rely on it; where it contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force, the judge will, in all probability reject it or, at least, not rely on it. Later in the judgment (at [121]) his Honour remarked: A trial judge is not restricted in his or her assessment of a witness. By this I mean that if, on peripheral issues, the trial judge reaches conclusions adverse to the credibility of a party, it does not necessarily follow, consistently with such conclusions, that these must be findings adverse to that party on the issues that are central to the determination of the matter. There is no rule of law or practice that states that an adverse finding on any aspect in the evidence of a witness means that the whole of that witness' evidence must be rejected. 1. To prove the offence of indecent assault the prosecution must firstly prove that there was an assault. That element can be satisfied by proof of either physical contact or the threat to a victim involving a reasonable apprehension of immediate and unlawful physical violence. The act relied upon by the prosecution must be deliberate, that is, it must be the non-accidental and voluntary act of the accused, and further, the conduct must be unlawful. For an assault to be indecent it must have a sexual connotation. It will have that connotation where the touching or threat is on or to a portion of the complainant's body, or by the use of a part of the assailant's body, which gives rise to that connotation. The Crown must establish that the accused "at the time of, or immediately before or after the assault" committed an act of indecency "on or in the presence of" the complainant. The same act may and frequently will constitute both the assault and the act of indecency. That is the case in this matter.