The Queen v DLW [2020] NSWDC 701

The Queen v DLW [2020] NSWDC 701

The substituted indictment irregularity was cured by the Accused's consent. The Crown was granted leave to rely on tendency evidence. AP's evidence was not proved beyond reasonable doubt because his July 2005 retraction, late weapon allegation, and late assertion of multiple assaults created reasonable doubt, so Count 4 failed. LM was a compelling and reliable witness; his complaint to Stephen Morell corroborated the uncharged shed incident and undermined Dwayne's denials, which were rejected as untruthful. The Court accepted LM's evidence and the tendency evidence, and was satisfied beyond reasonable doubt that the Accused committed Counts 1, 2 and 3.

Jurisdiction
Australia
Judgment Date
25 September 2020
Procedural Posture
Criminal Judge Alone Trial on Indictment for Aggravated Sexual Assault Under S61 J(1) of the Crimes Act 1900 (nsw) / Verdicts After Trial
Outcome
Accused found guilty on Counts 1, 2 and 3 concerning LM and not guilty on Count 4 concerning AP.
Legal Topics
['aggravated Sexual Assault' 'sexual Intercourse Without Consent' 'complainant Under the Age of 16 Years' 'judge Alone Trial' 'tendency Evidence' 'complaint Evidence' 'delay' 'indictment Amendment']
['criminal Law' 'evidence' 'criminal Procedure'] ['aggravated Sexual Assault' 'sexual Intercourse Without Consent' 'complainant Under the Age of 16 Years' 'judge Alone Trial' 'tendency Evidence' 'complaint Evidence' 'delay' 'indictment Amendment']

Case Brief

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Procedural Posture

Criminal Judge Alone Trial on Indictment for Aggravated Sexual Assault Under S61 J(1) of the Crimes Act 1900 (nsw) / Verdicts After Trial

Legal Issues

  1. 1 ['Whether the Accused consented to the substituted indictment so that the trial could proceed to judgment.' 'Whether the Crown should be granted leave to rely on tendency evidence concerning sexual interest in and sexual activity with young males aged 14 years and under.' 'Whether the Crown proved beyond reasonable doubt Counts 1, 2 and 3 concerning complainant LM.' 'Whether the Crown proved beyond reasonable doubt Count 4 concerning complainant AP.' "Whether delay, complaint evidence, retractions, omissions and inconsistencies affected the reliability of the complainants' evidence."]

Ratio Decidendi

The substituted indictment irregularity was cured by the Accused's consent. The Crown was granted leave to rely on tendency evidence. AP's evidence was not proved beyond reasonable doubt because his July 2005 retraction, late weapon allegation, and late assertion of multiple assaults created reasonable doubt, so Count 4 failed. LM was a compelling and reliable witness; his complaint to Stephen Morell corroborated the uncharged shed incident and undermined Dwayne's denials, which were rejected as untruthful. The Court accepted LM's evidence and the tendency evidence, and was satisfied beyond reasonable doubt that the Accused committed Counts 1, 2 and 3.

Court Disposition

Accused found guilty on Counts 1, 2 and 3 concerning LM and not guilty on Count 4 concerning AP.

Orders

  • ['In respect of Count 1, the Accused is found GUILTY.' 'In respect of Count 2, the Accused is found GUILTY.' 'In respect of Count 3, the Accused is found GUILTY.' 'In respect of Count 4, the Accused is found NOT GUILTY.' 'The exhibits are to be returned.' 'The Offender is to remain in custody awaiting sentence.']