Director of Public Prosecutions v Austin (No 4) - [2023] ACTSC 200

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Austin (No 4)
Citation:	[2023] ACTSC 200
Hearing Dates:	21-24 July 2023
Decision Date:	24 July 2023
Reasons Date:	28 July 2023
Before:	Baker J
Decision:	(1) I refuse the Accused’s no case application in respect of Count 4, dated 21 July 2023.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sexual offence proceedings – no case application – whether complainant’s evidence indicates relevant act was performed by complainant rather than accused – application refused
Legislation Cited:	Crimes Act 1900 (ACT) ss 50, 54, 60
Cases Cited:	Burns v The Queen [2012] HCA 35; 246 CLR 334 Doney v The Queen [1990] HCA 51; 171 CLR 207 Jiminez v R [1992] HCA 14; 173 CLR 572 LK v The Queen [2010] HCA 17; 241 CLR 177 May v O’Sullivan [1955] HCA 38; 92 CLR 654 Ryan v The Queen [1967] HCA 2; 121 CLR 205
Parties:	Director of Public Prosecutions ( Crown) Nathan James Austin ( Accused)
Representation:	Counsel M O’Connell ( DPP) M Jones ( Accused)
Solicitors ACT Director of Public Prosecutions Kamy Saeedi Law ( Accused)
File Number:	SCC 237 of 2022

BAKER J:

Introduction

1․The accused, Nathan Austin, is charged with six counts of sexual intercourse without consent contrary to s 54 of the Crimes Act 1900 (ACT) and one charge of an act of indecency without consent contrary to s 60 of the Crimes Act. Each act is alleged to have occurred at the complainant’s room, in Australian National University accommodation, on 26 November 2021.
2․At the conclusion of the prosecution case, Ms Jones SC, who appeared for the accused, made a ‘no case’ application in respect of Count 4 of the indictment. Count 4 is a charge of sexual intercourse without consent contrary to s 54(1) of the Crimes Act, relating to an allegation of penile-vaginal sexual intercourse that occurred when the complainant was on top of the accused.
3․In brief, Ms Jones SC submitted that because the complainant “brought her weight down” on the accused’s penis, it was the act of the complainant, rather than the accused, which resulted in penetration. In these circumstances, Ms Jones submitted that the first element of this count could not be established by the prosecution.
4․After hearing submissions from the parties, I indicated that I was satisfied that the evidence taken at its highest, and particularly the evidence that the accused rolled the complainant on top of him and that he guided his penis into the complainant's vagina is sufficient to establish the first element of Count 4; namely, that the accused engaged in sexual intercourse with the complainant. These are my reasons for so ordering.

Background

5․The prosecution allege that the complainant met the accused at Mooseheads nightclub on the night of 25 November 2021. They had attended school together and had not seen each other since year 9. The complainant and the accused talked,…

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 Director of Public Prosecutions v Austin (No 4)

Details

AGLC: Director of Public Prosecutions v Austin (No 4) [2023] ACTSC 200
Case: [2023] ACTSC 200
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory recently dealt with a case involving the accused, Nathan James Austin, who faced multiple charges of sexual intercourse without consent and one charge of an act of indecency without consent under the Crimes Act 1900 (ACT). The charges stem from an incident that occurred in the complainant’s room at Australian National University accommodation on 26 November 2021. At the conclusion of the prosecution's case, a 'no case' application was made concerning Count 4, which alleges penile-vaginal sexual intercourse without consent while the complainant was on top of the accused. The application sought to argue that the complainant's actions constituted the act of penetration, rather than the accused’s, thus negating the essential element of the offence.

The legal issue before Justice Baker was whether the evidence presented was sufficient to establish that the accused engaged in sexual intercourse with the complainant, as required by section 54 of the Crimes Act. The accused's counsel argued that penetration was the result of the complainant’s actions and not the accused's, invoking principles of causation and intent. They cited High Court cases such as Burns v The Queen and Ryan v The Queen to support their argument that the accused's act or omission was not voluntary and intentional. In contrast, the prosecution argued that the accused's actions in guiding and directing the complainant constituted engagement in sexual intercourse.

Justice Baker considered the principles established in May v O'Sullivan and Doney v The Queen, which emphasize that the court must assess whether the evidence at its highest could support a conviction. The court held that the definition of sexual intercourse in section 50 of the Crimes Act, when read in the context of section 54, requires the accused to engage in the act. The evidence presented indicated that the accused rolled the complainant onto him and guided his penis into her vagina, which, taken at its highest, sufficiently supports the notion that the accused engaged in sexual intercourse. Therefore, the court found that there was enough evidence to allow the matter to proceed to a jury, rejecting the no case application.

In summary, the court’s decision was that the evidence was sufficient to establish that the accused engaged in sexual intercourse with the complainant, and thus, the no case application was refused. This decision ensures that the case will proceed to trial, allowing the jury to assess the credibility and weight of the evidence presented.

Orders