R v Dm

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Refshauge J
• Judgment Date: 05 November 2010
• Docket Number: No. SCC 397 of 2008
• Date: 05 November 2010

R

and

Dm

[2010] ACTSC 137

Judge:

Refshauge J

No. SCC 397 of 2008

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

CRIMINAL LAW — trial — judge alone — eight counts of sexual intercourse with a person above the age of 10 years but under the age of 16 years — two counts of procuring a child for the production of child pornography — two counts of possessing child pornography — one count of suggesting to a child using electronic means to commit an act of a sexual nature — three complainants.

CRIMINAL LAW — trial — judge alone — plea of guilty accepted on four counts concerning one complainant during the trial — Crown declined to proceed to prosecute two further counts — trial proceeded on remaining seven counts.

CRIMINAL LAW — trial — judge alone — two counts of procuring a child for the production of child pornography — accused found not guilty.

CRIMINAL LAW — trial — judge alone — four counts of sexual intercourse with a person above the age of 10 years but under the age of 16 years — accused found not guilty.

CRIMINAL LAW — trial — judge alone — one count of suggesting to a child using electronic means to commit an act of a sexual nature — whether taking photograph is an act of indecency —accused found guilty

PRACTICE AND PROCEDURE — recorded evidence from pre-trial hearing — use of recorded evidence —legislation unclear whether the recorded evidence should be treated as a witness giving evidence or as an exhibit

R v Mulcahy [2010] ACTSC 98

R v Murray (1987) 11 NSWLR 12 .

WGC v The Queen (2007) 233 CLR 66

R v Markuleski (2001) 52 NSWLR 82

R v Court [1989] AC 28

R v Manson (New South Wales Court Criminal Appeal, Gleeson CJ, Clarke JA, Sully J, 60773/91, 60820/91, 17 February 1993, unreported)

R v Morton (1998) 143 FLR 268

R v Taylor [2010] ACTSC 121

Harkin (1989) 38 A Crim R 296 ,

R v AWC [2003] SASC 416

DW v The Queen (2004) 150 A Crim R 139

Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241

R v Forsti [2010] ACTSC 85

Crimes Act 1900 (ACT), ss 64, 66(1), 66(6)

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 40, 40E, 40K, 40S(1), 40S(2), 40S(3), Div 4.2B

Sexual and Violent Offences Legislation Amendment Act 2008 (ACT) which amended the Evidence (Miscellaneous Provisions) Act 1991 (ACT)

Supreme Court Act 1933 (ACT), ss 68B, 68C

Counsel for the prosecution: Mr C Todd

Counsel for the defendant: Mr J Glissan QC and Mr J Sabharwal

ORDER

THE COURT ORDERS THAT:

1. The accused is guilty of the first count on the indictment.

2. The accused is guilty of the second count on the indictment.

3. The accused is guilty of the third count on the indictment.

4. The accused is discharged in respect of the fourth count on the indictment.

5. The accused is not guilty of the fifth count on the indictment.

6. The accused is not guilty of the sixth count on the indictment.

7. The accused is not guilty of the seventh count on the indictment.

8. The accused is not guilty of the eighth count on the indictment.

9. The accused is not guilty of the ninth count on the indictment.

10. The accused is not guilty of the tenth count on the indictment.

11. The accused is guilty of the eleventh count on the indictment.

12. The accused is guilty of the twelfth count on the indictment.

13. The accused is discharged on the thirteenth count on the indictment.

1 The accused, DM, had been involved in the ACT Scouting Movement (Scouts ACT) for some years. Part of the activities of Scouts ACT was an annual stage performance known as The Gang Show. DM has been involved in the Gang Show since 2000. The complainants in respect of the charges that DM faces had also been involved The Gang Show. In summary, DM is accused of engaging in sexual impropriety with the complainants whom he met as a result of their respective involvement in The Gang Show.

2 In order to comply with s 40 of the Evidence ( Miscellaneous Provisions) Act 1991 (ACT) ( Miscellaneous Provisions Act), I shall in these reasons use ciphers to refer to the complainants (and the name of anyone else, the publication of which might breach s 40). I shall attach to these a copy of these reasons provided to the parties a table showing which cipher represents which person.

The charges

3 The indictment preferred against DM contained 13 counts as follows:

FIRST COUNT	…that between the 1 st day of September 2004 and the 30 th day of September 2004 at Canberra in the Australian Capital Territory DM engaged in sexual intercourse with [C1] who was then above the age of 10 years but under the age of 16 years, namely 13 years.
SECOND COUNT	AND FURTHER THAT between the 1 st day of September 2004 and the 31 st day of October 2004 at Canberra aforesaid DM engaged in sexual intercourse with [C1] who was then above the age of 10 years but under the age of 16 years namely, 13 years.
THIRD COUNT	AND FURTHER THAT between the 1 st day of September 2004 and the 31st day of October 2004 at Canberra aforesaid DM engaged in sexual intercourse with [C1] who was then above the age of 10 years but under the age of 16 years, namely 13 years.
FOURTH COUNT	AND FURTHER THAT between the 27th day of April 2005 and the 30th day of September 2005 at Canberra aforesaid DM engaged in sexual intercourse with [C1] who was then above the age of 10 years but under the age of 16 years namely, 14 years.
FIFTH COUNT	AND FURTHER THAT between the 1 st day of January 2007 and the 31 st day of January 2007 at Canberra aforesaid DM engaged in sexual intercourse with [C2] who was then above the age of 10 years but under the age of 16 years namely, 15 years.
SIXTH COUNT	AND FURTHER THAT between the 1 st day of January 2007 and the 31 st day of January 2007 at Canberra aforesaid DM engaged in sexual intercourse with [C2] who was then above the age of 10 years but under the age of 16 years namely, 15 years.
SEVENTH COUNT	AND FURTHER THAT between the 1 st day of April 2007 and the 30 th day of April 2007 at Canberra aforesaid DM engaged in sexual intercourse with [C2] who was then above the age of 10 years but under the age of 16 years namely, 15 years.
EIGHTH COUNT	AND FURTHER THAT between the 1 st day of April 2007 and the 30 th day of April 2007 at Canberra aforesaid DM engaged in sexual intercourse with [C2] who was then above the age of 10 years but under the age of 16 years namely, 15 years.
NINTH COUNT	AND FURTHER THAT between the 1 st day of December 2006 and the 31 st day of January 2007 at Canberra aforesaid DM procured a child namely, [C2], for the production of child pornography.
TENTH COUNT	AND FURTHER THAT between the 1 st day of December 2006 and the 30 th day of April 2007 at Canberra aforesaid DM procured a child namely, [C2], for the production of child pornography.
ELEVENTH COUNT	AND FURTHER THAT between the 1 st day of August 2007 and the 31 st day of August 2007 at Canberra aforesaid DM suggested to a young person namely [C3], using electronic means, namely SMS messages sent by a mobile telephone, that she commit an act of a sexual nature .
TWELFTH COUNT	AND FURTHER THAT on the 20 th day of December 2007 at Canberra aforesaid DM intentionally possessed child pornography.
THIRTEENTH COUNT	AND FURTHER THAT on the 20 th day of December 2007 at Canberra aforesaid DM intentionally possessed child pornography.

Proceedings

4 DM was committed to the Supreme Court for trial on 14 October 2008. He was arraigned on 12 May 2009 and pleaded not guilty to all counts. The trial was set to commence on 15 June 2010.

5 Before the trial, however, a pre-trial hearing was heard on 22 October 2009. This was a procedure introduced by the Sexual and Violent Offences Legislation Amendment Act 2008 (ACT) which amended the Miscellaneous Provisions Act.

6 By the insertion of s 40Q of the Miscellaneous Provisions Act a witness who is a child may give evidence at a pre-trial hearing. Two witnesses gave their evidence at the pre-trial hearing in October 2009 through CCTV from a remote room and that evidence was recorded.

7 On 22 June 2009, DM elected for trial by a judge alone under s 68B of the Supreme Court Act 1933 (ACT). Section 68C then provides in respect of such proceedings:

• (1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such findings has, for all purposes, the same effect as a verdict of a jury.

• (2) The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

• (3) In criminal proceedings tried by a judge alone, if a Territory law would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict.

8 In R v Mulcahy [2010] ACTSC 98 (at [13]-[24]), Nield AJ set out helpfully the directions and considerations that should be given at a judge alone trial. His Honour said:

13. A criminal trial is governed by rules. The fundamental rules are designed to ensure that an accused person receives a fair trial according to law. The fundamental rules which govern a criminal trial are these.

14. The Crown bears the onus, burden or obligation, to use three interchangeable words, to prove the guilt of the accused. The Crown has asserted that the accused has committed a criminal offence, therefore the Crown must prove that the accused committed that offence. The accused does not have to prove that he did not commit that offence.

15. The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.

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