R v Kertz [2019] NSWDC 387

District Court New South Wales

Medium Neutral Citation: R v Kertz [2019] NSWDC 387 Hearing dates: 18, 19, 20 March 2019 Date of orders: 27 March 2019 Decision date: 27 March 2019 Jurisdiction: Criminal Before: Buscombe DCJ Decision: Count 1: Not guilty Count 2: Not guilty on count 2 on the indictment but guilty of the non‑aggravated form of the offence. Catchwords: CRIMINAL PROCEDURE — Trial — Judge alone — Reasons of trial judge CRIME — Property offences — Enter dwelling-house with intent to commit serious indictable offence — Indecent assault — Circumstances of aggravation CRIME — Violent offences — Detain for advantage CRIMINAL PROCEDURE — Trial — Alternative verdict Legislation Cited: Crimes Act 1900 (NSW) ss 86(2)(b), 111(2), 115A, 428B Criminal Procedure Act 1986 (NSW) ss 133, 293A Cases Cited: Azzopardi v The Queen (2001) 205 CLR 50 Castle v The Queen [2016] NSWCCA 148 Fleming v The Queen (1998) 197 CLR 250 Category: Principal judgment Parties: Director of Public Prosecution (Crown) Harold Kertz (Accused) Representation: Counsel: N Keay (Crown)

Solicitors: P Townsend (Legal Aid NSW) (Accused) File Number(s): 2018/161770 Publication restriction: Statutory non-publication order re identity of complainant

Decision 1. HIS HONOUR: The accused stood trial before me sitting without a jury on an indictment which contained the following two counts: count 1: That on or about 19 May 2018 he entered the dwelling house of the complainant with intent to commit a serious indictable offence, namely, indecent assault, in circumstances of aggravation, namely, using corporeal violence on the complainant. That is an offence under s 111(2) of the Crimes Act. Count 2 alleges that on 19 March 2018 the accused detained the complainant without her consent with the intention of obtaining an advantage, namely, sexual gratification and at the time of the detaining actual bodily harm was occasioned to the complainant. That is an offence under s 86(2)(b) of the Crimes Act. 2. I concluded hearing the evidence and the submissions of the parties on 20 March 2019 while on circuit at Goulburn and stood the proceedings over to today for delivery of the verdict and reasons. Despite having asked for a transcript of the evidence, in particular that of the complainant, regrettably I am having to give the verdict and the reasons without the advantage of a transcript. 3. I am required in this judgment to include the principles of law that I have applied and the findings of facts on which I have relied (see s 133 of the Criminal Procedure Act). There must be exposed in my judgment the reasoning process linking those principles of law to the verdicts that are ultimately reached (see Fleming v The Queen (1998) 197 CLR 250). 4. The most important principle of law to be applied in any criminal trial is that the onus of proof is on the Crown and proof is required beyond reasonable doubt. The words "beyond reasonable doubt" carry their ordinary English meaning and should be given their ordinary meaning in this context. Suspicion, no matter how grave, is no substitute for proof beyond reasonable doubt.