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DF v Rigby

DF v Rigby

Case [2019] NTSC 46 17 June 2019

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CITATION:DF v Rigby [2019] NTSC 46
PARTIES:DF
v

RIGBY, Kerry Leanne

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 67 of 2018 (21816719)
DELIVERED ON:  17 June 2019
HEARING DATE:  27 May 2019
JUDGMENT OF:  Grant CJ
CATCHWORDS:

CRIMINAL LAW – JUDGMENT AND PUNISHMENT
Whether verdict unsafe and unsatisfactory – application of force not reasonably needed for common intercourse of life – evidence insufficient to find sexual connotation beyond reasonable doubt – appeal allowed in part – finding of guilt on circumstance of aggravation that victim indecently assaulted set aside – offender resentenced.
Criminal Code 1983 (NT), s 187, s 188
BD v The Queen [2017] NTCCA 2, Beer v McCann; Ex parte McCann [1993] 1 Qd R 25, Boughey v The Queen (1986) 161 CLR 10, Bowden v Hales [2001] NTSC 96, Case Stated by Director of Public Prosecutions (SA) (No 1 of 1993) (1993) 66 A Crim R 259, Dennis v Davis [2010] NTSC 35, Drago v The Queen (1992) 8 WAR 488, Hall v Rigby [2018] NTCA 12, Harkin v R (1989) 38 A Crim R 296, Horan v Ferguson [1995] 2 Qd R 490, R v Coombes [1961] Crim LR 54, R v Court [1989] AC 28, R v George [1956] Crim LR 52, R v RL [2009] VSCA 95, Theisinger v Rigby [2018] NTCA 8, The Queen v Phillips (1971) 45 ALJR 467, referred to.
REPRESENTATION:
Counsel:
Appellant:J Ker
Respondent:  I Rowbottam
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  GRA1914
Number of pages:  19

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
DF v Rigby [2019] NTSC 46

LCA 67 of 2018 (21816719)
BETWEEN:

DF

Appellant

AND:

KERRY LEANNE RIGBY

Respondent

CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 17 June 2019)
[1]This is an appeal against a finding of guilt for the offence of aggravated assault made by the Local Court. The sole ground of appeal is that the finding was unsafe and unsatisfactory. The two issues presenting for consideration are whether the force was applied and reasonably needed for the common intercourse of life, and whether the aggravating circumstance of indecency was made out.
[2]The terms of the charge were that on 14 April 2018 at Humpty Doo in the Northern Territory of Australia the appellant unlawfully assaulted his son contrary to s 188(1) of the Criminal Code 1983 (NT), and the assault involved the following circumstances of aggravation:
(a)that the victim suffered harm (Criminal Code, s 188(2)(a));
(b)that the victim was under the age of 16 years, namely seven years of age, and the offender was an adult (Criminal Code, s 188(2)(c));
(c)that the victim was unable due to infirmity effectually to defend himself (Criminal Code, s 188(2)(d)); and
(d)that the victim was indecently assaulted (Criminal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DF v Rigby

Details

AGLC: DF v Rigby [2019] NTSC 46
Case: [2019] NTSC 46
Decision Date: 17 June 2019

CaseChat Overview and Summary

In the matter of DF v Rigby, the appellant sought to appeal the verdict and sentence imposed by the trial court, arguing that the verdict was unsafe and unsatisfactory. The dispute centred around allegations of assault and the application of force during an interaction between the appellant and the victim. The case was heard in the court of appeal. The central legal issues the court was required to address were whether the verdict was unsafe and unsatisfactory and whether the application of force was not reasonably needed for the common intercourse of life. Furthermore, the court had to consider whether the evidence was sufficient to find a sexual connotation beyond reasonable doubt.

The court meticulously reviewed the evidence presented and concluded that while the appellant's actions were indeed forceful, the evidence did not sufficiently establish a sexual connotation beyond reasonable doubt. The court found that the application of force was not reasonably needed for the common intercourse of life. Consequently, the court allowed the appeal in part, setting aside the finding of guilt on the circumstance of aggravation that the victim indecently assaulted. The court then proceeded to resentence the offender, taking into account the revised findings. This decision highlights the importance of ensuring that the evidence supporting a conviction is clear and beyond reasonable doubt, particularly in cases involving allegations of assault with a sexual connotation.

Orders