By Sarah McPhee
Kyle Daniels silently exited the NSW District Court on Monday, leaving prosecutors to consider whether the Mosman swimming instructor should face a third trial on 11 child abuse charges.
Three-and-a-half years after his highly publicised arrest on Sydney’s northern beaches, the 24-year-old was acquitted of 10 out of 21 charges after a lengthy retrial which had run since mid-August.
Kyle Daniels leaves Downing Centre District Court after the jury in his second trial was discharged.Credit: Nikki Short
On Monday morning, after returning the last of their not guilty verdicts, the jury was at an impasse on five counts of indecent assault and six counts of intentionally sexually touching a child, related to five different girls at Mosman Swim Centre.
“There remains no prospect of resolution on these counts,” a jury note read.
Following further direction from Judge Kara Shead to continue deliberations unless they had exhausted all discussion, and her acknowledgment that a “level of frustration” would exist in the jury room, another note was received.
“We remain divided on all remaining counts,” it read.
The judge discharged the jury after consultation with counsel, including defence barrister Leslie Nicholls accepting that it was “regrettably” the next step.
Daniels’ first trial met the same end in December 2020.
The judge said it would be for the Office of the Director of Public Prosecutions to decide on a third trial, and indicated an intention to preside over any retrial as she had over the first and second.
The evidence of the complainants was pre-recorded.
In a statement to the Herald, a spokesperson for the ODPP said: “The ODPP will consider the matter in accordance with our Prosecution Guidelines and determine the next steps.”
The guidelines state that in cases “where two juries have been unable to agree upon a verdict, a retrial will be directed only in exceptional circumstances”. Any such direction must be given by the director Sally Dowling, SC, or a deputy director.
The Crown alleged at trial that Daniels had a sexual interest in young girls and acted on it by touching the vaginas of nine students during lessons in 2018 and 2019.
Daniels was last week acquitted of nine charges related to four girls, including four not guilty verdicts after the judge directed the 11-person jury that majority verdicts of 10:1 could be accepted.
Daniels was cleared of all five charges of sexual intercourse with a child aged under 10 by digital penetration, the most serious counts on the indictment.
In final submissions, Crown prosecutor Tony McCarthy had acknowledged the case “rises and falls on the evidence of the children”.
He argued there was “significant commonality” between their accounts and that the jury should conclude the alleged sexual acts were not accidental or a mere coincidence but rather intentional.
McCarthy had argued Daniels was “evasive” during questioning about a signed counselling form and internal memo circulated after the first complaint was made to the swimming school in mid-2018.
Daniels was stood down in February 2019 after a fresh complaint - the first reported to Family and Community Services - and he was arrested the following month.
Nicholls, in his closing address, said there was no evidence Daniels was aware of the alleged touching, and nothing was alleged to have been said by the accused or the complainants at the relevant times. If touching did occur, it was “inadvertent or accidental”.
The defence argued Daniels was “consistent and unwavering” in his evidence that he did not knowingly or deliberately touch the complainants’ genitals.
The influence of parents and the media on a complaint was to be considered, Nicholls stressed, arguing that suggestive actions and questions were used in interviews. He said Daniels was paraded in front of police cameras when he was arrested, before a number of complainants came forward.
The defence raised that one girl had repeatedly told her parents nothing had happened before making an allegation, and she had said in her evidence her father “was not going to accept it”.
“There came a point where the child says what that father expected to hear,” Nicholls said. That indecent assault charge was among the not guilty verdicts returned.
Nicholls said there was “absolutely no evidence whatsoever” Daniels had been seeking to groom the girls.
He raised his client’s good character and that he has never been convicted of any criminal offence.
Nicholls estimated Daniels had taught more than 6000 students. The court heard the 24-year-old lived in South Africa and Singapore before moving to Sydney and attending Knox Grammar, where he was a competitive swimmer, prior to his work as an instructor while attending university.
Daniels was supported on Monday by his parents and brother. His bail, which includes a $100,000 surety, was varied by consent to remove the condition to report once a week to police.
The case returns to court in December.
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