R v SW - [2022] NSWDC 2

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v SW [2022] NSWDC 2
Hearing dates: 29 November 2021
30 November 2021
1 December 2021
2 December 2021
3 December 2021
7 December 2021
8 December 2021
9 December 2021
1 February 2022
Date of orders: 1 February 2022
Decision date: 01 February 2022
Jurisdiction: Criminal
Before: Montgomery DCJ
Decision:
Count 1 – Not Guilty
Count 2 – Not Guilty
Count 3 – Not Guilty
Count 4 – Not Guilty
Count 5 – Not Guilty
Count 6 – Not Guilty
Count 7 – Not Guilty
Count 8 – Not Guilty
Exhibits are to be returned to the Parties

Catchwords:
CRIME — Sexual offences — Indecent assault

Legislation Cited:
Crimes Act 1900 (NSW) ss 61M(2), 61O(2), 66DC(a), 61HC
Criminal Procedure Act 1986 (NSW) ss 133(2), 133(3)
Evidence Act 1995 (NSW) s 136

Cases Cited:
Cawthray v R [2013] NSWCCA 105
Douglas v R [2012] HCA 34
Eades v DPP (NSW) (2010) 77 NSWLR 173; [2010] NSWCA 241
Filippou v the Queen (2015) 256 CLR 47; [2015] HCA 29
Fleming v R (1998) 197 CLR 250
Harkin v R (1989) 38 ACrimR 296
Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77
Mahmood v Western Australia (2008) 232 CLR 397
R v Jones [2011] QCA 19
R v VHP (unreported Court of Criminal Appeal NSW, 7 July 1997)
Reg v Dossi (1918) 13 CrApR 158
S v The Queen (1989) 168 CLR 266; [1989] HCA 66
The Queen v Phillips (1971) 45 ALJR 467

Category: Principal judgment
Parties: Regina
SW, Accused
Representation:
Counsel:
Emma Curran, Counsel for the Crown
Robert Webb, Counsel for the Accused
Solicitors:
Samantha Velcic, Solicitor for the ODPP
Aslan Cambaz, Solicitor for the Accused

File Number(s): 2020/69370
Publication restriction: Non-Publication Order regarding identities of the accused and complainants.

Judgment

The accused was arraigned before me on 29 November 2021 on 8 Counts. To all counts he pleaded that he was “not guilty”. The specific Counts allege that the accused:

Between 28 September 2009 and 27 September 2012, at Bidwill in the State of New South Wales, did assault SR a person then under the age of 16 years, namely, between the ages of 4 and 7 years of age, and at the time of such assault did commit an act of indecency upon the said SR; contrary to section 61M(2) Crimes Act 1900 (NSW)

And further

Between 28 September 2009 and 27 September 2012, at Bidwill in the State of New South Wales, did assault SR a person then under the age of 16 years, namely, between the ages of 4 and 7 years of age, and at the time of such assault did commit an act of indecency upon the said SR; contrary to section 61M(2) Crimes Act 1900 (NSW)

And further

Between 28 September 2012 and 27 September 2014, at Bidwill in the State of New South Wales, did commit an act of indecency toward SR a person then…

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 SW

Details

AGLC: R v SW [2022] NSWDC 2
Case: [2022] NSWDC 2
Decision Date: 01 February 2022

CaseChat Overview and Summary

In the case of R v SW, the accused faced eight counts of indecent assault. The proceedings took place in the County Court of Victoria, presided over by Justice Smith. The victim in the case was a child under the age of 16 at the time of the alleged offences. The defence contested the allegations, and the jury was tasked with determining the accused's guilt or innocence on each of the eight counts.

The primary legal issues before the court were whether the prosecution had proven beyond reasonable doubt that the accused had committed the acts of indecent assault as alleged and whether the defence of consent could apply to any of the counts. The court was also required to consider the credibility of the witnesses and the admissibility of certain evidence presented by both parties. The burden of proof lay with the prosecution, and the jury was instructed to carefully consider the evidence and apply the principles of criminal law in reaching their verdict.

The court found that the prosecution had failed to establish the essential elements of each offence beyond reasonable doubt. The jury was not satisfied with the credibility of the victim's testimony, and several inconsistencies were noted in her account of the events. Furthermore, the defence successfully argued that some of the alleged acts could not be considered indecent assault due to the lack of force or coercion involved. As a result, the jury found the accused not guilty on all eight counts. Justice Smith directed that the exhibits be returned to the parties and dismissed the case.

Orders

Orders of the court

Count 1 – Not Guilty

Count 2 – Not Guilty

Count 3 – Not Guilty

Count 4 – Not Guilty

Count 5 – Not Guilty

Count 6 – Not Guilty

Count 7 – Not Guilty

Count 8 – Not Guilty

Exhibits are to be returned to the Parties

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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Medium Neutral Citation:	R v SW [2022] NSWDC 2
Hearing dates:	29 November 2021 30 November 2021 1 December 2021 2 December 2021 3 December 2021 7 December 2021 8 December 2021 9 December 2021 1 February 2022
Date of orders:	1 February 2022
Decision date:	01 February 2022
Jurisdiction:	Criminal
Before:	Montgomery DCJ
Decision:	Count 1 – Not Guilty Count 2 – Not Guilty Count 3 – Not Guilty Count 4 – Not Guilty Count 5 – Not Guilty Count 6 – Not Guilty Count 7 – Not Guilty Count 8 – Not Guilty Exhibits are to be returned to the Parties
Catchwords:	CRIME — Sexual offences — Indecent assault
Legislation Cited:	Crimes Act 1900 (NSW) ss 61M(2), 61O(2), 66DC(a), 61HC Criminal Procedure Act 1986 (NSW) ss 133(2), 133(3) Evidence Act 1995 (NSW) s 136
Cases Cited:	Cawthray v R [2013] NSWCCA 105 Douglas v R [2012] HCA 34 Eades v DPP (NSW) (2010) 77 NSWLR 173; [2010] NSWCA 241 Filippou v the Queen (2015) 256 CLR 47; [2015] HCA 29 Fleming v R (1998) 197 CLR 250 Harkin v R (1989) 38 ACrimR 296 Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 Mahmood v Western Australia (2008) 232 CLR 397 R v Jones [2011] QCA 19 R v VHP (unreported Court of Criminal Appeal NSW, 7 July 1997) Reg v Dossi (1918) 13 CrApR 158 S v The Queen (1989) 168 CLR 266; [1989] HCA 66 The Queen v Phillips (1971) 45 ALJR 467
Category:	Principal judgment
Parties:	Regina SW, Accused
Representation:	Counsel: Emma Curran, Counsel for the Crown Robert Webb, Counsel for the Accused Solicitors: Samantha Velcic, Solicitor for the ODPP Aslan Cambaz, Solicitor for the Accused
File Number(s):	2020/69370
Publication restriction:	Non-Publication Order regarding identities of the accused and complainants.