N Langdown & B Moss v BI

[2020] ACTMC 6

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

N Langdown & B Moss v BI

Citation:

[2020] ACTMC 6

Hearing Date(s):

25 November 2019, 26 November 2019, and 7 February 2020

DecisionDate:

8 May 2020

Before:

Special Magistrate Hunter OAM

Decision:

See [308] - [323]

Catchwords:

CRIMINAL LAW - PARTICULAR OFFENCES - EVIDENCE Offences Against the Person, Indecent Assault, Consent, Recklessness, Advertent and Inadvertent Recklessness, Complaint Evidence. 

Legislation Cited:

Crimes Act 1900 (ACT)

Parties:

N Langdown (Informant)

B Moss (Informant)

BI (Defendant)

Representation:

Solicitors:

Ms L Sutton (Prosecution)

Mr J Purnell SC (Defence)

ACT Director of Public Prosecutions (Informant)

Aulich (Defendant)

File Number(s):

CC2019/1934, CC19/12619-620

SPECIAL MAGISTRATE HUNTER OAM:

History

1. The Defendant, BI, had been charged with an act of indecency pursuant to s60 (1) Crimes Act 1900. That trial was decided by another Magistrate. The Magistrate’s decision was appealed to the Supreme Court. On appeal the matter was remitted back to the Magistrates Court to be heard by a differently constituted court.

2. The hearing of this matter came before me for rehearing on 25 November 2019. The Defendant claimed the charge before the Court was duplicitous and after argument and consideration of the Authorities, the Prosecutor had 2 further charges laid as a result. Those two additional charges were also the subject of the hearing, having been particularised as below at [4].

3. The hearing ran over several days including 25 and 26 November 2019 and 17 February 2020.

4. The Prosecutor alleges that all three charges were committed on 8 February 2016, between 18.30 hours and 19.00 hours at [address redacted]. The Prosecutor particularised the offences as:

   (1)CC2019/12619 – Hugging of the Complainant in the wardrobe whilst she only had her bra on, without her consent;

   (2)CC 2019/1934 – hugging her from the back and rubbing himself against her back and kissing her neck without her consent as she sat in her wardrobe; and

   (3)CC 2019/12620 – throwing her onto the bed, pinning her down and attempting to kiss her without her consent.

5. I heard from Brendan Moss, a Constable of Police, and Dean Leeson, a First Constable of Police. I also received recorded evidence from the earlier proceeding from the Complainant, SK, as well as a tender bundle of documents from the previous hearing.

6. The Defendant also participated in a recorded police interview which I received in evidence. The Defendant gave evidence in the earlier proceeding and the transcript of that evidence was exhibited before me. I also heard evidence from the Defendant on 7 February 2020.

7. The Prosecution opened its case giving a history of the relationship between the Defendant and the Complainant. Both the Defendant and the Complainant were in a long-term sexual relationship which ended amicably in 2014. Both the Defendant and the Complainant remained living in the jointly owned home at [address redacted], on a friendship only basis.

8. On 8 February 2016 at approximately 18.30 hours, the Complainant was getting ready to go out with her friend SK and had just had a…