M, B v Police

In the case of M, B v Police, the appellant was convicted by the Magistrates Court of South Australia of indecent assault and related offences. The appellant appealed against his conviction and sentence, arguing that the evidence was insufficient to prove the sexual activity occurred and that if it did occur, the complainant was capable of consenting to it. The appeal was heard in the Supreme Court of South Australia.

The legal issues the court had to decide were whether the evidence was sufficient to prove that the sexual activity occurred and if it did, whether the complainant could consent to it given her intellectual impairment. The court had to independently review the evidence and scrutinise the findings of the Magistrate, ensuring there was no miscarriage of justice.

The court found that the Magistrate's conclusion that the sexual activity occurred was based on the evidence of JH, the complainant’s aunt, who was deemed a truthful and reliable witness. The court did not find any errors in the Magistrate’s assessment of JH’s evidence or the other witnesses. The court further found that the complainant’s intellectual impairment did not necessarily mean she was incapable of consent. However, the court found that the evidence did not prove beyond reasonable doubt that the appellant’s actions were non-consensual, given the complainant’s apparent pleasure and the loving nature of the embrace.

The court upheld the appeal against conviction, finding the verdict unreasonable or insupportable having regard to the evidence. The appeal against sentence was not considered necessary. The conviction was quashed, and the appellant was acquitted.