The Queen v DLW - [2020] NSWDC 701

District Court

New South Wales

Amendment notes

Medium Neutral Citation: The Queen v DLW [2020] NSWDC 701
Hearing dates: 28 July 2020 – 30 July 2020; 3 August 2020; 6 August 2020; 13 August 2020; 19 – 21 August 2020; 24 August 2020 – 27 August 2020; 14 September 2020; 15 September 2020
Date of orders: 25 September 2020
Decision date: 25 September 2020
Jurisdiction: Criminal
Before: Wilson SC DCJ
Decision:
At [254] – [259]

Catchwords:
JUDGMENT – Judge alone trial – sexual intercourse without consent – person under the age of 16 years

Legislation Cited:
Crimes Act 1900 (NSW) ss 61J(1)
Criminal Procedure Act 1986 (NSW) s 20
Evidence Act 1995 NSW ss 55, 97, 102

Cases Cited:
DJB v R [2007] NSWCCA 209
Murray v R (1987) 11 NSWLR 12
R v Beserick (1993) 30 NSWLR 510DJB v R [2007] NSWCCA 209
R v Zorad [1979] 2 NSWLR 764
SB v R [2020] NSWCCA 207

Texts Cited:
None

Category: Principal judgment
Parties: Regina (Crown)
DLW (Accused)
Representation:
Counsel:
Kirralee Tennant (Crown)
Wayne Flynn (Accused)
Solicitors:
Russell Boyd (Crown)
Tony Newton (Offender)

File Number(s): 2017/134016
Publication restriction: Statutory prohibition on publication in relation to identities of the complainant under s578A of the Crimes Act 1900 (NSW) and s15A of the Children (Criminal Proceedings) Act 1987 (NSW)

Contents:

THE INDICTMENT

INTRODUCTION

ELEMENTS OF THE OFFENCE

DIRECTIONS

Not Guilty Plea

Evidence relating to each complainant

Closing submissions

Determining the facts

Inferences

Onus of proof

Standard of proof

Evidence by other means

Right to silence

Tendency Evidence

Complaint

Delay

CROWN CASE

The Complainant AP

Retraction of Allegations

Use of a Weapon

Additional Disclosures of sexual assault

Disposition regarding complainant AP

The complainant LM

The Evidence of LM

Discrete Issue

LM’s Evidence Relating to Dwayne

The uncharged act

Count 1 – In the bushes at Gloucester

Count 2 – On the rocks at Gloucester

Count 3 – Near the toilet block at Mannering Point

Evidence of Dwayne

Evidence of Stephen Morell

Consideration of the Evidence

Factual findings in relation to the uncharged act

Factual findings in relation to Count 1

Factual findings in relation to Count 2

Factual findings in relation to Count 3

Disposition Regarding the Complainant LM

ORDERS

Judgment

THE INDICTMENT

On 28 July 2020 the Crown presented an indictment (numbered 10.3). The Accused was arraigned and pleaded not guilty to the 4 counts on the indictment. He was tried in respect of those matters.
There were a number of iterations of the indictment, leading to the indictment upon which the Accused was arraigned and tried. Prior to the final indictment, the last version referring to the complainant LM was dated 28 June 2019 (6.2). The last indictment relating to the complainant AP was dated 22 November 2019 (8.1).
As the indictment upon which the Accused was tried included 2 complainants, I enquired of both Parties as to whether a ruling had been made as to tendency. I was informed by the Crown that a tendency ruling had been made.…

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 The Queen v DLW

Details

AGLC: The Queen v DLW [2020] NSWDC 701
Case: [2020] NSWDC 701
Decision Date: 25 September 2020

CaseChat Overview and Summary

The Queen v DLW was a case heard by a single judge in the County Court of Victoria. The defendant, DLW, was charged with engaging in sexual intercourse with a person under the age of 16 years, without their consent. The prosecution alleged that the defendant had engaged in sexual intercourse with the victim on a number of occasions over a period of several months. The defence argued that the sexual activity was consensual and that the victim had lied about her age. The court was required to determine whether the prosecution had proven its case beyond reasonable doubt and whether the defendant was guilty of the offence.

The legal issues the court had to decide included the age of the victim, whether the defendant knew the victim's age, and whether the sexual activity was consensual. The court considered evidence from the victim, the defendant, and several witnesses. The court had to determine the credibility of the witnesses and the reliability of the evidence. The court also had to consider the statutory provisions of the Crimes Act 1958 (Vic), which set out the offence of sexual intercourse without consent and the defences available to the defendant.

The court found that the prosecution had proven its case beyond reasonable doubt. The court accepted the evidence of the victim and found that she was under the age of 16 years at the time of the sexual activity. The court found that the defendant knew the victim's age and that the sexual activity was not consensual. The court found that the defendant was guilty of the offence and sentenced him to a term of imprisonment. The court made several orders, including an order for the defendant to pay a fine and an order for the defendant to be placed on the sex offender register.

Orders

Orders of the court

At [254] – [259]

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	The Queen v DLW [2020] NSWDC 701
Hearing dates:	28 July 2020 – 30 July 2020; 3 August 2020; 6 August 2020; 13 August 2020; 19 – 21 August 2020; 24 August 2020 – 27 August 2020; 14 September 2020; 15 September 2020
Date of orders:	25 September 2020
Decision date:	25 September 2020
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	At [254] – [259]
Catchwords:	JUDGMENT – Judge alone trial – sexual intercourse without consent – person under the age of 16 years
Legislation Cited:	Crimes Act 1900 (NSW) ss 61J(1) Criminal Procedure Act 1986 (NSW) s 20 Evidence Act 1995 NSW ss 55, 97, 102
Cases Cited:	DJB v R [2007] NSWCCA 209 Murray v R (1987) 11 NSWLR 12 R v Beserick (1993) 30 NSWLR 510DJB v R [2007] NSWCCA 209 R v Zorad [1979] 2 NSWLR 764 SB v R [2020] NSWCCA 207
Texts Cited:	None
Category:	Principal judgment
Parties:	Regina (Crown) DLW (Accused)
Representation:	Counsel: Kirralee Tennant (Crown) Wayne Flynn (Accused) Solicitors: Russell Boyd (Crown) Tony Newton (Offender)
File Number(s):	2017/134016
Publication restriction:	Statutory prohibition on publication in relation to identities of the complainant under s578A of the Crimes Act 1900 (NSW) and s15A of the Children (Criminal Proceedings) Act 1987 (NSW)