R v JDS - [2021] NSWDC 579

District Court

New South Wales

Case Name:	R v JDS
Medium Neutral Citation:	[2021] NSWDC 579
Hearing Date(s):	5 October 2021 – 14 October 2021
Date of Orders:	27 October 2021
Decision Date:	27 October 2021
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Verdicts of Guilty on Counts 1-5; Verdict of Not Guilty on Counts 6-7. For orders see [301].
Catchwords:	CRIME – Judge alone trial – historical child sex offending – aggravated indecent assault – aggravated sexual assault – sexual intercourse – sexual assault – assault & commit act of indecency - victim under 10 – victim under 16 years – under authority – tendency evidence – context evidence.
Legislation Cited:	Criminal Procedure Act 1986 Evidence Act 1995 (NSW)
Cases Cited:	Markuleski v R (2001) 52 NSWLR 82; [2001] NSWCCA 290
Category:	Principal judgment
Parties:	Director of Public Prosecutions (Crown) JDS (Accused)
Representation:	Counsel: L. Lungo (Crown) J. Ellis (Accused)
File Number(s):	2020/20534
Publication Restriction:	S 578A of the Crimes Act 1900 applies to as to prohibit the publication of any material which may identify or is likely to lead to the identification of the complainants in the proceedings

Judgment
Counts 1 and 2
Count 3
Count 4
Count 5
Count 6 and Count 7

Evidence in the Crown case
Evidence of DSE
Evidence of JE
The accused’s ERISP
Evidence of DE
Evidence of ME
Evidence of the Officer in Charge (“OIC”) Detective Harvey Cole
Evidence of Dr A McDonald

The accused’s case
Evidence of the accused, JDS
Evidence of LS

The Crown address
The accused’s address
Directions of law
Assessment of witnesses generally
Assessment of witnesses in the Crown case
Assessment of witnesses in the accused’s case
Findings of fact
Determination
Orders

JUDGMENT

JDS pleaded not guilty upon arraignment on an Indictment containing the following counts:
(1)Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, had sexual intercourse with DE a person then above the age of 10 years and under the age of 16 years, namely between 7 and 11 years of age, being a person under the authority of JDS.
(2)Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, had sexual intercourse with DE a person then above the age of 10 years and under the age of 16 years, namely between 7 and 11 years, being a person under the authority of JDS.
(3)Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, incited DSE a person then under the age of 16 years, namely, between 5 and 7 years of age, who was under the authority of JDS, to commit an act of indecency towards JDS.
(4)Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, assaulted DSE and at the time of the assault, committed an act of indecency on DSE, a person then under the age of 16 years, namely between…

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 JDS

Details

AGLC: R v JDS [2021] NSWDC 579
Case: [2021] NSWDC 579
Decision Date: 27 October 2021

CaseChat Overview and Summary

The case before the court involved an individual, JDS, who was charged with various historical offences of a sexual nature against two victims. The charges included aggravated indecent assault, aggravated sexual assault, sexual intercourse with a child under the age of 10, sexual assault, and assault and committing an act of indecency against a child under 16 years of age. The proceedings were heard by a judge alone in the Supreme Court of Victoria.

The legal issues that the court had to resolve included the admissibility of evidence related to the tendency of the accused to have committed the offences and the context in which the offences were alleged to have occurred. The court also had to consider whether the evidence was sufficient to prove the charges beyond reasonable doubt. Additionally, the court needed to determine whether the victims were under the age of 10 or 16 at the time of the offences.

The court found that the evidence presented was sufficient to prove the charges beyond reasonable doubt. The judge accepted the tendency and context evidence as it was relevant and probative of the charges. The court found the victims to be under the age of 10 and 16 at the time of the offences, respectively. The court found JDS guilty on counts 1-5 and not guilty on counts 6-7. The court made orders regarding the sentences and other matters in paragraph [301] of the judgment.

Orders

Orders of the court

Verdicts of Guilty on Counts 1-5; Verdict of Not Guilty on Counts 6-7. For orders see [301].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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