Grant DCJ: accused’s evidence unacceptable
The criminal standard of proof beyond reasonable doubt is fundamental – and formidable. A recent decision from the NSW District Court shows how near impossible it is to reach that burden in child sexual assault cases where events have long since transpired, and which depend on the difficult and vaporous recollections of childhood.
In R v GM, the accused’s name and personal details are largely redacted from the written judgment. A former resident of NSW, GM relocated to the Gold Coast in 2021, several years after the offences allegedly took place.
Though the judgment does not state where in NSW the alleged offences occurred, much of the facts centre around the 2009 Northern Rivers Floods. GM was also represented by Megan Cusack, a criminal defence barrister based at Lismore Chambers.
Forty-five child sex offence charges were laid against GM, including allegations of indecency and sexual intercourse against children, and the sending of indecent material.
The Crown case was assembled after four complainants, aged between 20 and 22, made separate reports to police detectives about GM.
These complainants had at varying times in their early childhood been friends with GM’s daughter, or neighbours and family friends of GM and his family. The allegations went as far back as 2008, when the complainants were as young as six.
Judge Sean Grant detailed the various allegations in a timeline spanning 260 paragraphs. He found that many of the allegations occurred on the balance of probabilities, noting significant deficiencies in the accused’s testimony at various points in the trial.
For example, one of the charges concerned acts of indecency against one of GM’s daughter’s school friends, BF, while at a sleepover. The allegation was that GM would sit inappropriately with BF between his legs on a chair in front of his computer, to make sexual contact with her.
Though he denied ever sitting in such a way, the Crown furnished the court with home video footage of him in the impugned position, contrary to his denials.
Further, Judge Grant rejected GM’s evidence about a message sent to AR, another complainant. While the police arranged pretext communications as part of their investigation, AR engaged in a text exchange with the accused on Snapchat.
At one point, a message was sent from his account stating: “I was I [sic] love with you back then.”
The accused denied sending this message, claiming that it was sent by a work acquaintance who had taken possession of his phone. HH rejected this claim as implausible, noting that it “enlivens my suspicions about the accused”.
Despite these discrepancies, Grant acquitted the accused on all charges, stating that “suspicions form no part in the criminal law”.
Grant wrapped up his reasons, stating:
“Did the accused probably commit the offences? Yes. Am I highly suspicious of the accused? Yes. One must bear in mind that proof beyond reasonable doubt is the highest standard of proof known to the law. I have found difficulty accepting the accused’s evidence, but I think it might be true … I am obliged to find the accused not guilty.”
While HH conceded that some evidential lapses on the complainants’ part were due to the difficulty of recalling traumatic childhood memories, he could not overlook more significant discrepancies which arose in cross-examination.
These apparent deficiencies concerned details such as the floorplan of the accused’s residence, and the timing of family and school vacations, which varied between testifiers.
HH also could not find beyond reasonable doubt that the accused’s denials – that he did not make sexual contact with BF while at the computer desk, or that he did not send the “love” message to AR – were lies.
The Crown was unable to successfully prove that GM exhibited a tendency towards children that would be demonstrative of the intent underlying the numerous charges.
GM was ultimately entitled to the benefit of the judge’s doubt and acquitted on all charges.
While satisfied on the probabilities that the offences took place, HH closed with a reminder that a verdict of not guilty “does not mean a finding of innocence”.
The District Court’s prosecution wars
Judge Grant made a media appearance in February this year with an attack on the NSW DPP, Sally Dowling, accusing her of “blatant judge shopping”, after the prosecution asked that he recuse himself from sentencing in an under-age sexual assault case.
Dowling also lodged a complaint about Grant with the Judicial Commission claiming “he might not bring an impartial and unprejudiced mind” to sentencing two boys who pleaded guilty to a sexual assault at a school boarding house.
The complainant was assaulted by three boys with an attack that included the insertion of a lock into his anus.
Grant, at the sentencing of the principal offender, said he is “highly remorseful for the one blemish in his life …
“It would appear that he is a hardworking compassionate kid and the offences are out of character.”
He was handed a community correction order (aka a good behaviour bond), and because the prosecution regarded this as far too lenient there was an application for him recuse himself from the sentencing of the other offenders.
Grant regarded the application as “judge shopping” and refused to budge.
The DPP’s office rejected the shopping accusation, adding that the sole basis to have the judge removed was his apprehended bias.