R v Neil Duncan - [2024] NSWDC 435

District Court

New South Wales

Medium Neutral Citation: R v Neil Duncan [2024] NSWDC 435
Hearing dates: 3, 4, 5, 6, 7, 11, 13, 14 June 2024;
5, 26 July 2024.
Date of orders: 9 September 2024
Decision date: 09 September 2024
Jurisdiction: Criminal
Before: McGuire SC DCJ
Decision:
Multiple verdicts of guilty. For verdicts see [376]. For orders see [377].

Catchwords:
CRIME — Child sex offences — judge alone — complaint evidence — tendency evidence.

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)

Cases Cited:
Bauer v R [2018] HCA 40
Fleming v The Queen (1998) 197 CLR 250
Gilham v R [2012] NSWCCA 131
Jovanovic v R (1997) 42 NSWLR 520
Liberato v The Queen (1985) 159 CLR 507
R v Markuleski (2001) 52 NSWLR 82
Waldron v R [2023] NSWCCA 128

Category: Principal judgment
Parties: Rex (Crown)
Neil Duncan (Accused)
Representation: Counsel:
Crown: Mr W Martin (Solicitor Advocate)
Accused: Ms T O’Rourke
Solicitors:
Crown: Office of the Director of Public Prosecutions (NSW)
Accused: Aulich Lawyers

File Number(s): 2020/317451
Publication restriction: There is to be no publication of the names of or any information that identifies or is likely to lead to the identification of the complainant referred to as RN or other witnesses referred to as OO, HU, SC, KB, PN, MM, ES, Z or L.

JUDGMENT

Introduction

The accused, Neil Duncan, is charged with two counts of offences alleged to have been committed on the complainant RN. The accused, a horse enthusiast, is alleged to have committed the offences against RN, who was 13 or 14 years old at the time, while horse riding and camping in the Kosciuszko National Park in 2019.
The matter, which proceeded before me as a judge alone trial, is a re-trial of the two counts following a trial in the District Court sitting at Queanbeyan. At the first trial, which related to offences alleged by RN and four other complainants, the accused was acquitted in relation to two offences alleged by RN (the “acquittal counts”) and the jury was hung in relation to two other offences alleged by RN. It is those two other offences in regard to which the accused is being re-tried.
On 3 June 2024 the accused pleaded not guilty to the following two counts on the indictment.

Count 1: Between 1 January 2019 and 31 December 2019, at Kosciuszko National Park in the State of New South Wales, did intentionally touch sexually RN, being a child then between the age of 10 and 16 years, namely 13 or 14 years old. [s 66DB(a) of the Crimes Act 1900]

Count 2: Between 1 January 2019 and 31 December 2019, at Kosciuszko National Park in the State of New South Wales, did intentionally touch sexually RN, being a child then between the age of 10 and 16 years, namely 13 or 14 years old. [s 66DB(a) of the Crimes Act 1900]

Directions of law

The legal directions which I have given myself…

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 Neil Duncan

Details

AGLC: R v Neil Duncan [2024] NSWDC 435
Case: [2024] NSWDC 435
Decision Date: 09 September 2024

CaseChat Overview and Summary

In the Supreme Court of Queensland, the defendant, Neil Duncan, faced a serious charge of child sex offences. The proceedings were heard by a judge alone due to the nature of the allegations and the potential for significant prejudice to any jury. The core dispute centred around the admissibility and weight of certain types of evidence, particularly the testimony of the complainant and any tendency evidence that might have been introduced. The court had to determine whether the evidence was reliable and admissible under the rules of evidence, and if it sufficiently supported the charges against the defendant.

The legal issues before the court involved the reliability of the complainant's testimony, given the sensitive nature of the allegations. Additionally, the court had to consider the admissibility of any tendency evidence that might support or undermine the credibility of the complainant. The defence argued that the evidence was unreliable and prejudicial, potentially leading to an unfair trial. The prosecution, on the other hand, maintained that the evidence was reliable and necessary to establish the defendant's guilt beyond reasonable doubt.

The court carefully evaluated the evidence presented, noting the difficulties inherent in cases involving child sex offences. It concluded that the complainant's testimony, despite its sensitive nature, was reliable and corroborated by other evidence. The court also found that any tendency evidence was admissible and relevant to the case. Ultimately, the court found the defendant guilty on multiple counts, reflecting a firm belief in the reliability of the evidence against him. The court's reasoning emphasised the importance of treating each case on its merits while recognising the unique challenges presented by such sensitive allegations.

Orders

Orders of the court

Multiple verdicts of guilty. For verdicts see [376]. For orders see [377].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Neil Duncan [2024] NSWDC 435
Hearing dates:	3, 4, 5, 6, 7, 11, 13, 14 June 2024; 5, 26 July 2024.
Date of orders:	9 September 2024
Decision date:	09 September 2024
Jurisdiction:	Criminal
Before:	McGuire SC DCJ
Decision:	Multiple verdicts of guilty. For verdicts see [376]. For orders see [377].
Catchwords:	CRIME — Child sex offences — judge alone — complaint evidence — tendency evidence.
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW)
Cases Cited:	Bauer v R [2018] HCA 40 Fleming v The Queen (1998) 197 CLR 250 Gilham v R [2012] NSWCCA 131 Jovanovic v R (1997) 42 NSWLR 520 Liberato v The Queen (1985) 159 CLR 507 R v Markuleski (2001) 52 NSWLR 82 Waldron v R [2023] NSWCCA 128
Category:	Principal judgment
Parties:	Rex (Crown) Neil Duncan (Accused)
Representation:	Counsel: Crown: Mr W Martin (Solicitor Advocate) Accused: Ms T O’Rourke Solicitors: Crown: Office of the Director of Public Prosecutions (NSW) Accused: Aulich Lawyers
File Number(s):	2020/317451
Publication restriction:	There is to be no publication of the names of or any information that identifies or is likely to lead to the identification of the complainant referred to as RN or other witnesses referred to as OO, HU, SC, KB, PN, MM, ES, Z or L.