Sydney Magistrate, Graeme Curran, 70, was initially jailed for two years and four months on seven counts of indecent assault last year after a jury found him guilty of assaulting a teenage boy in the 1980s.

Curran launched an appeal, claiming that the Crown’s prosecutor’s closing address to the jury “gave rise to a miscarriage of justice” and the guilty verdicts were “unreasonable and cannot be supported having regard to the evidence”. Last month, the NSW Court of Criminal Appeal (NSWCCA) upheld five out of his seven convictions after the judges concluded they had no reasonable doubt about his guilt on the charges. The two charges quashed included incidents on a yacht, where Curran was accused of performing oral sex on the teenager and kissing him afterwards.

The court re-sentenced Curran to a maximum of 16 months imprisonment. He already served his new non-parole period and was immediately released from custody.

The decision

Justices Basten, Hulme and Hamill have recently published their reasons for their decision.

Ground 1: The court rejected the contention that the verdict should be set aside if it was “unreasonable or cannot be supported, having regard to the evidence” because the jury had been “clearly and competently directed as to their task and the relevant legal principles to be applied”. They further reiterated that it is the jury’s responsibility to assess the credibility and reliability of the witnesses and they are not required to provide reasons for their verdict.

Ground 2: Curran also argued that two statements by the Crown prosecutor during the trial gave rise to a miscarriage of justice. These statements implied that:

• Curran could have had the motive to lie, and
• Curran “perhaps” had a weakness for “boys in general”

The court found that these statements did not give rise to a miscarriage of justice because they were followed by thorough instructions by the trial judge. Justice Hulme further commented that he found it “startling” that the senior barrister who appeared for the Crown could make such “fundamentally flawed submissions to the jury”.

Justice Basten also said the jury should have considered a reasonable doubt about the two charges that were dropped because the complainant said his memory about the incident emerged after being concealed within the “black box” of his subconscious” for years. His Honour explained that a failure to remember such an event “at several stages over the lengthy preparation of evidence for a court case must at least cast doubt on the reliability of that evidence, which cannot be resolved by any rational method”.

However, Justice Hamill concluded that after reviewing the entirety of the case, including some unreliable evidence, it did not lead him to conclude that there was a reasonable doubt in relation to the remaining five counts of indecent assault.

Sexual Touching offence

As mentioned in our previous article, the offence of indecent assault has been replaced by the offence “sexual touching” in s 61KC of the Crimes Act. In this case, Curran would have satisfied the criteria of the sexual touching offence, as the incidents included Curran sexually touching the teenager, and inciting the teenager to sexually touch himself. The legislation is now broader than the previous indecent assault offence, where sexual touching is defined as touching another person:

• With any part of the body or with anything else, or
• Through anything, including anything worn by the person doing the touching or by the person being touched

Additionally, the court considers whether a reasonable person would consider the touching to be sexual in nature. Curran would have likely been found to have sexually touched the complainant under the new legislation because the convictions upheld by the NSWCCA involved incidences where Curran kissed and cuddled the victim, forced the victim to undertake morning “massage rituals” on his bed and fondled the victim’s privates.

These incidents occurred while the complainant was between the ages of 13-16 years old and Curran was in his early thirties. Both Curran and the teenager viewed their relationship as similar to that of an uncle and nephew. Such a breach of trust is viewed as increasing the gravity of the crime (Regina v Andrew Dean McIntosh [2011]).

If you have been arrested or the police are looking to interview you regarding an investigation, Pannu Lawyers is able to advise you of your rights at every step of the criminal investigation & trial process. Pannu Lawyers extensively practice in Criminal Law and regularly appear at Courts throughout New South Wales such as Blacktown Local Court, Mt Druitt Local Court, Parramatta Local Court & District Court, Burwood Local Court, Downing Centre Local Court & District Court, and Penrith Local Court. If your matter is at Blacktown Court, we are conveniently located within a walking distance from the Blacktown Local Court. Call our office on 02 9920 1787 to discuss your matter in a confidential manner.

This above information is intended as general information and is not intended to be relied on as legal advice. The part of this article is taken from an article published by the Sydney Morning Herald.