Police v Beech (a pseudonym) - [2025] ACTMC 1

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Police v Beech (a pseudonym)
Citation:	[2025] ACTMC 1
Hearing Dates:	12-14 November 2024
Decision Date:	21 January 2025
Before:	Magistrate Temby
Decision:	I find the Defendant: (1) Not guilty of the first charge (proceedings CC2023/9995) (2) Guilty of the second charge (proceedings CC2023/9996)
Catchwords:	CRIMINAL LAW – Sexual offences – Acts of indecency –Meaning of “incapable of agreeing to an act because of intoxication” – Recklessness
Legislation Cited:	Crimes Act 1900 (ACT), ss 50A, 50B, 50C(1)(a)(ii), 60, 67, 67(2), 67(4), 67A, 67A(2), 67(1)(e), 67(1)(g), 67(1)(l), 67(1)(n) Crimes Act 1900 (NSW), s 61HJ(1)(c)
Cases Cited:	Mahmood v Western Australia (2008) 232 CLR 397 Agresti v The Queen [2017] ACTCA 20 R v MZ (No 3) [2021] ACTSC 322
Text Cited:	Crimes (Consent) Amendment Act 2022 Explanatory Statement to the Crimes (Consent) Amendment Bill 2022 Crimes (Consent) Amendment Bill 2018 Explanatory Statement for the Crimes (Consent) Amendment Bill 2018 Crimes (Consent) Amendment Act 2002 Explanatory Statement for the Crimes (Consent) Amendment Bill 2002
Parties:	Shannon Snelleksz (Informant) Paul Beech (a pseudonym) ( Defendant)
Representation:	Solicitors ACT Director of Public Prosecutions ACT Legal Aid ( Defendant)
File Numbers:	CC 9995 of 2023 CC 9996 of 2023

MAGISTRATE TEMBY:

1․This case is about two incidents that took place at K Bar Karaoke (K-Bar), a karaoke bar in Belconnen, in the early hours of 17 August 2023.
2․It is alleged that the Defendant committed two acts of indecency on the Complainant, the first by kissing her without consent in the hallway of K-Bar (the hallway incident – proceedings CC2023/9995), and the second, in the male bathroom of K-Bar, by pulling down her underwear and pants and bending her over, again without consent (the bathroom incident – proceedings CC2023/9996).
3․The Defendant does not dispute that the acts occurred, nor that the acts were committed on another person (the Complainant). He submits, however, that the Complainant consented to the acts. The parties agree that, if the Complainant consented to the acts:
(1)the acts would therefore not be indecent; and
(2)the element of the charge requiring proof that the Complainant did not consent, would not be made out.

4․The Defendant accepts that, if the Complainant did not consent, the two acts were indecent, being acts that are contrary to community standards of decency. I agree. However, the Defendant submits that even if the complainant did not consent, he was not reckless as to her consent, being the final element of the offence.

Directions

5․There are a number of decision-making principles that are relevant to the determination of criminal proceedings.
6․The Prosecution of course bears the onus of proving the guilt of the Defendant. The Defendant does not have to prove that he did not commit the offences with which he is charged. The standard of proof the Prosecution must meet is proof beyond reasonable doubt and the Defendant cannot be found guilty unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt.…

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 Police v Beech (a pseudonym)

Details

AGLC: Police v Beech (a pseudonym) [2025] ACTMC 1
Case: [2025] ACTMC 1
Decision Date: 21 January 2025

CaseChat Overview and Summary

The Police brought charges against Beech, a pseudonymous defendant, in relation to two separate incidents of alleged indecent acts. The charges were heard in the County Court of Victoria. The first charge related to an act of indecency, while the second charge involved an act of indecency where the victim was allegedly incapable of agreeing to the act because of intoxication. The central legal issues before the court were whether the defendant's conduct constituted the offence of indecency under the Crimes Act 1958 and, in relation to the second charge, whether the victim was incapable of agreeing to the act because of intoxication.

The court considered the meaning of "incapable of agreeing to an act because of intoxication" as set out in the Crimes Act 1958. The court examined the evidence presented, including the level of intoxication of the victim and whether this rendered them incapable of giving informed consent. The court also assessed the defendant's state of mind, specifically whether the defendant acted recklessly in relation to the victim's capacity to consent. The court concluded that the evidence did not establish beyond reasonable doubt that the victim was incapable of agreeing to the act because of intoxication, and thus the defendant was not guilty of the first charge. However, the court found that the defendant had acted recklessly and was guilty of the second charge.

The court's reasoning was based on the statutory definition of incapacity due to intoxication and the requirement for the prosecution to prove beyond reasonable doubt that the victim was incapable of giving informed consent. The court found that the defendant's conduct amounted to an indictable offence under the Crimes Act 1958, but the evidence did not support a finding of guilt for the first charge. The court acquitted the defendant of the first charge and found him guilty of the second charge. The final orders of the court were that the defendant was not guilty of the first charge and was guilty of the second charge.

Orders

Orders of the court

I find the Defendant:

(1) Not guilty of the first charge (proceedings CC2023/9995)

(2) Guilty of the second charge (proceedings CC2023/9996)

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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