R v BM [2021] NSWDC 488

R v BM [2021] NSWDC 488

The accused's version might be true, so under the Liberato/De Silva approach he had to be acquitted. In any event, even if his version were rejected, the Crown had not proved the charges beyond reasonable doubt because the mother's interview and the police interview were so leading and suggestive that the complainant's evidence was contaminated and unreliable, with a real risk of confusion between the 2018 and 2019 alleged incidents.

Jurisdiction
Australia
Judgment Date
17 September 2021
Procedural Posture
Criminal Appeal Against Convictions and Sentence From the Local Court of NSW / District Court Appeal Under Section 18 of the Crimes (appeal & Review) Act 2001 (nsw)
Outcome
Appeal allowed; both charges dismissed; sentencing orders set aside.
Legal Topics
['intentionally Sexually Touching a Child Under 10' 'intentionally Carrying Out a Sexual Act With or Towards a Child Under 10' 'contamination of Complainant Evidence' 'credibility and Reliability' 'proof Beyond Reasonable Doubt' 'liberato/de Silva Direction']
['criminal Law' 'criminal Appeals' 'evidence' 'child Sex Offences'] ['intentionally Sexually Touching a Child Under 10' 'intentionally Carrying Out a Sexual Act With or Towards a Child Under 10' 'contamination of Complainant Evidence' 'credibility and Reliability' 'proof Beyond Reasonable Doubt' 'liberato/de Silva Direction']

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Procedural Posture

Criminal Appeal Against Convictions and Sentence From the Local Court of NSW / District Court Appeal Under Section 18 of the Crimes (appeal & Review) Act 2001 (nsw)

Legal Issues

  1. 1 ['Whether the Crown proved beyond reasonable doubt that the accused intentionally sexually touched a child under 10 years of age under section 66DA(a) of the Crimes Act 1900 (NSW).' 'Whether the Crown proved beyond reasonable doubt that the accused intentionally carried out a sexual act with or towards a child under 10 years of age under section 66DC(a) of the Crimes Act 1900 (NSW).' "Whether the complainant's evidence was reliable given leading and suggestive questioning in the mother's interview and police interview." "Whether the accused's version might be true, requiring acquittal under the Liberato/De Silva approach." 'What approach should be taken on a conviction appeal under section 18 of the Crimes (Appeal & Review) Act 2001 (NSW).']

Ratio Decidendi

The accused's version might be true, so under the Liberato/De Silva approach he had to be acquitted. In any event, even if his version were rejected, the Crown had not proved the charges beyond reasonable doubt because the mother's interview and the police interview were so leading and suggestive that the complainant's evidence was contaminated and unreliable, with a real risk of confusion between the 2018 and 2019 alleged incidents.

Court Disposition

Appeal allowed; both charges dismissed; sentencing orders set aside.

Orders

  • ['The appeal is allowed.' 'In respect of count 1 the charge is dismissed.' 'In respect of count 2 the charge is dismissed.' 'Sentencing orders set aside']