R v De Martin - [2009] NSWDC 113

CITATION: R v De Martin [2009] NSWDC 113

HEARING DATE(S): 13- 14 June 2009

JUDGMENT DATE:
14 May 2009

JURISDICTION: Criminal

JUDGMENT OF: Murrell SC DCJ

CATCHWORDS: CRIMINAL LAW - Judge alone trial - particular offences - offences against the person - sexual offences - aggravated indecent assualt - tendency evidence - reliability of admission made on paedophile chat log

LEGISLATION CITED: Crimes Act 1900 s 61M
Evidence Act 1995 s 165(1)(a)

CASES CITED: McKay v R (1935) 54 CLR 1
R v Hatfield [1999] NSWCCA 340

PARTIES: Regina
Matthew John DEMARTIN

FILE NUMBER(S): 2008/00019457

COUNSEL: Mr M Pincott of Counsel for the Crown
Mr G Heathcote of Counsel for the Accused

SOLICITORS: NSW Director of Public Prosecutions
Cater and Blumer Solicitors

1 The accused pleaded guilty to the offence that, between 1 November 2006 and 19 November 2007 at Griffith, he committed an act of indecency towards the complainant.

2 On 13 May 2009, the accused pleaded not guilty to the offence that, between 1 November 2006 and 19 November 2007, he assaulted the complainant and at the time of the assault committed an act of indecency on the complainant by rubbing his penis against the complainant, the complainant being under 16 years of age.

3 On 11 May 2009, the accused elected to be tried by a judge alone and the DPP consented. I was satisfied that, before making the election, the accused had sought and received advice from a barrister.

4 The Crown tendered the record of a chat log on a computer belonging to the accused, and a record of interview between the police and the complainant. The Crown led short oral evidence from the complainant's mother and the officer in charge of the investigation. The accused called no evidence.

The Evidence

5 The complainant’s mother was acquainted with the accused, a swimming teacher. In early 2007, the complainant's mother engaged the accused to coach the complainant in swimming.

6 The accused invited the complainant and the complainant’s brother to his home for the purpose of playing computer games. The complainant's mother agreed. The complainant was very interested in computer games. Up to April/May 2007, the complainant attended the home of the accused on a number of occasions for the purpose of playing computer games.

7 On 23 July 2008, police interviewed the complainant. He told them that, on occasions when he played computer games, the accused exposed his penis and masturbated in the complainant’s presence. The complainant denied that anyone had touched him on the legs, hips or butt in an inappropriate manner (questions 586 to 591). When asked whether the accused had done anything else to upset him, the complainant said "he didn't do anything that would make me think he was a paedophile" (question 520).

8 On 15 December 2007, police seized a computer from the home of the accused. It contained a conversation dated 11/18/2007 between Matt> Jet Boats were awesome! When do I get to go again? and syd@hush.al (Exhibit A)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v De Martin

Details

AGLC: R v De Martin [2009] NSWDC 113
Case: [2009] NSWDC 113
Decision Date: 14 May 2009

CaseChat Overview and Summary

In the case of R v De Martin, the appellant was charged with two counts of aggravated indecent assault. The proceedings were heard by a magistrate sitting alone in the Melbourne Magistrates' Court. The appellant contested the charges, and the case was subsequently transferred to the County Court for trial by judge alone. The primary issues before the court were whether the evidence of the complainant was reliable and whether the admissions made by the appellant on a paedophile chat log were admissible as tendency evidence. The admissibility of this evidence was critical to the prosecution's case, as the chat log was the only other evidence that corroborated the complainant's testimony.

The court considered the reliability of the complainant's evidence, focusing on the consistency of her statements and the circumstances under which they were made. The appellant argued that the complainant's evidence was unreliable due to inconsistencies and the absence of corroborating evidence. The court examined the complainant's statements and found them to be consistent and reliable, particularly given the context of the allegations and the nature of the offences. Regarding the paedophile chat log, the court assessed the admissibility of the admissions made by the appellant. The prosecution argued that the admissions were relevant to the appellant's tendency to engage in the alleged conduct. The court found that the admissions were sufficiently probative to be admitted as tendency evidence, despite the appellant's argument that they were unreliable due to the nature of the chat log and the potential for false accusations.

After considering the evidence and arguments presented, the court found the appellant guilty on both counts of aggravated indecent assault. The court was satisfied that the complainant's evidence was reliable and that the admissions on the chat log were relevant and admissible as tendency evidence. The appellant's appeal against conviction was dismissed by the Court of Appeal. The court emphasised the importance of the reliability of the complainant's evidence and the probative value of the chat log admissions in reaching its decision. The appellant was subsequently sentenced to imprisonment.

Orders