Church v The State of Western Australia

The appeal was brought by the applicant, who was convicted of one count of digital penetration and two counts of indecent dealing with a girl over the age of 16 but under 18, who was under the applicant’s authority due to their employer/employee relationship. The applicant was convicted in the District Court of Western Australia and appealed to the Court of Appeal of the Supreme Court of Western Australia. The applicant sought to rely on the fact that the complainant was not a virgin at the time of the incident as a mitigatory factor, arguing that the jury should have been directed to consider this as a mitigating factor in the circumstances of the case.

The central issue before the court was whether the onus of proof for the alleged mitigating fact lay with the applicant or the prosecution. The court examined whether the applicant had discharged the onus of proving the mitigating fact on the balance of probabilities and whether the trial judge was required to direct the jury to consider the mitigating fact in the context of the charges.

The court held that the onus of proving any mitigating fact in criminal cases lies with the offender. The court found that the applicant had not proved that the complainant was not a virgin at the time of the offence, and that the trial judge was not required to direct the jury to consider this fact. The court dismissed the appeal, affirming the conviction and sentence of the applicant.

The appeal was dismissed, and the conviction and sentence of the applicant were affirmed.