PM v Beck - [2016] ACTSC 314

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	PM v Beck
Citation:	[2016] ACTSC 314
Hearing Date:	20 October 2016
DecisionDate:	28 October 2016
Reasons Date:	28 October 2016
Before:	Murrell CJ
Decision:	Appeal allowed. Verdicts of not guilty entered.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from ACT Childrens Court – incest – meaning of fellatio – whether evidence sufficient to support conviction HUMAN RIGHTS – PROCEDURE – Need to issue notices in accordance with s 34 Human Rights Act 2004 (ACT) – cases where notice is required
Legislation Cited:	Crimes Act 1900 (ACT) s 50, 62 Evidence Act 2011 (ACT) s 66 Evidence (Miscellaneous Provisions) Act1991 (ACT) Div 4.2.2A Human Rights Act 2004 (ACT) ss 21, 22, 34 Magistrates Court Act 1930 (ACT) ss 214, 218, Div 3.10.2
Cases Cited:	Beck v PM [2015] ACTCC 1 DPP v M and J (1993) 9 WAR 281 OH v Driessen [2015] ACTSC 148 R v Forsyth [2013] ACTSC 179; 281 FLR 62 R v JC [2000] ACTSC 72 Randall v R [1991] SASC 2877; 55 SASR 447
Texts Cited:	Explanatory Statement, Crimes Legislation Amendment Bill 2012 (No 2) (ACT)
Parties:	PM (Appellant) Teresa Beck (Respondent)
Representation:	Counsel Mr S Wybrow and Mr J Moffett (Appellant) Ms E Beljic (Respondent)
Solicitors Aboriginal Legal Service (NSW/ACT) (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 15 of 2016
Decision under appeal:	Court/Tribunal: ACT Childrens Court Before: Magistrate Fryar Date of Decision: 11 December 2015; 19 February 2016 Case Title: Beck v PM Citation: [2015] ACTCC 1

MURRELL CJ:

On 11 December 2015, the Childrens Court Magistrate (the Magistrate), convicted the appellant, a young person, of two counts of incest (fellatio) with DC, his 10-year-old half - brother. The charges related to the period 30 September to 5 November 2014, when the appellant was 15 years old.

Incest with a person over the age of 10 years but under the age of 16 years of age is an offence against s 62(2) of the Crimes Act 1900 (ACT).

The Magistrate sentenced the appellant to 12 months’ imprisonment on each count.

The Magistrate also convicted the appellant of the offence that, on 5 November 2014, he committed an act of indecency upon LF, the five-year-old daughter of his half sister, she being a person under the age of 10 years (tickling the genital area). For this offence, the Magistrate imposed an 18 month good behaviour order.

The Magistrate acquitted the appellant of two counts of committing acts of indecency upon OB, an eight-year-old child. Her Honour was not satisfied beyond reasonable doubt about OB’s version of events.

The Magistrate’s reasons for decision were published: Beck v PM [2015] ACTCC 1.

The appellant appealed against the incest convictions.

Prior to the hearing, the appellant abandoned a ground of appeal that challenged the admission of tendency evidence and asserted that separate hearings should have been held in relation to each complainant.

Initially, the appellant appealed against…

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 PM v Beck

Details

AGLC: PM v Beck [2016] ACTSC 314
Case: [2016] ACTSC 314
Decision Date: 28 October 2016

CaseChat Overview and Summary

In this case, the respondent was convicted in the ACT Children's Court of incest with his daughter. The respondent appealed his conviction to the ACT Supreme Court, claiming that the evidence was insufficient to prove that his conduct amounted to incest and that the court should have issued notices to him under the Human Rights Act 2004 (ACT). The primary issues for determination were whether the evidence was sufficient to support a conviction for incest and whether the court was required to issue notices to the respondent under the Human Rights Act. The Supreme Court held that the evidence was insufficient to prove that the respondent's conduct amounted to incest because the prosecution had not proven that the respondent engaged in sexual activity with his daughter. The court found that the term "fellatio" in the Crimes Act 1900 (ACT) did not include oral sex performed by a male on a female. Furthermore, the court held that the requirement to issue notices under the Human Rights Act did not apply to this case because the respondent's right to a fair hearing was not engaged. The appeal was allowed, and verdicts of not guilty were entered.

Orders

Orders of the court

Appeal allowed. Verdicts of not guilty entered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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