Police v Marcel Walters (a pseudonym) - [2024] ACTCC 3

CHILDRENS COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Police v Marcel Walters (a pseudonym)
Citation:	[2024] ACTCC 3
Hearing Dates:	20 March 2024 to 22 March 2024
Decision Date:	10 July 2024
Before:	Magistrate Stewart
Decision:	Count 1 - not proved Count 2 - proved beyond reasonable doubt
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sexual offences – Attempt incest – Act of indecency on a person under the age of 10 years
Legislation Cited:	Children and Young People Act2008 (ACT) Crimes Act 1900 (ACT) Criminal Code 2002 (ACT) Evidence (Miscellaneous Provisions) Act 1991 (ACT)
Cases Cited:	De Silva v The Queen [2019] HCA 48; 268 CLR 57 Johnson v Western Australia (2008) 186 A Crim R 531 Liberato v The Queen (1985) 159 CLR 507 R v Anderson (2001) A Crim R 166 R v Atai [2021] ACTSC 157 R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 R v Murray (1987) 11 NSWLR 12 R v MZ (No 3) [2021] ACTSC 332 R v Shillings [2003] NSWCCA 272 TheQueen v GW (2016) 258 CLR 108
Parties:	ACT Director of Public Prosecutions (Prosecution) Marcel Walters (a pseudonym) (Young Person)
Representation:	Counsel G. Cuthel (Prosecution) J. Cooper (Young Person)
Solicitors ACT Director of Public Prosecutions (Prosecution) Aboriginal Legal Service (NSW/ACT)
File Number:	CH933/2023 and CH934/2023

MAGISTRATE STEWART:

CONTENTS

INTRODUCTION

JURISDICTION

Elements of the Offences

Charge 1 CH2023/933: Attempted Incest

Charge 2 CH 2023/934: Aggravated Act of Indecency on a Person Under the Age of 10 Years

THE WITNESS EVIDENCE

The Complainant MU

Evidence of UI

The Complainant’s Sister KT

The Mother of MU and TK, BU

The Father TU

Evidence of the Accused Young Person

Police Witness Statements

A Consideration of Liberato

DEFENCE REQUEST FOR s165A(2) WARNING AS TO “CIRCUMSTANCES OF UNRELIABILTY - SINGLE WITNESS ACCOUNT”

CONSIDERATION

Defence Submissions on the AYP’s Evidence and the Defence Case

The Prosecution Case

Assessment of MU’s Evidence

Complaint

Defence Submissions on a Reasonable Doubt

INTRODUCTION

1․The accused young person[1] Marcel Walters (the AYP) is now aged 18 years. He is charged with offences from when he was aged 17 years and 10 months. The allegations relate to 3 July 2023 and his nine year old half-sister who I shall refer to as MU:
[1] Children and Young People Act2008 (ACT) s 12 (CYP Act) defines a young person as a person who is 12 years or older but not yet and adult. The Legislation Act 2001 (ACT) defines ‘adult’ at Part 1 in the dictionary as meaning “an individual who is at least 18 years old”. A child is defined at s 11 of the CYP Act as meaning “a person who is under 12 years”.
(a)CH 2023/933 attempted incest, contrary to 62(1) of the Crimes Act 1900 (ACT) by virtue of s44 of the Criminal Code 2002 (ACT) – carrying a maximum penalty of imprisonment for 20 years; and as an alternative (or back-up) charge:
(b)CH 2023/934 act of indecency on a person under…

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 Marcel Walters (a pseudonym)

Details

AGLC: Police v Marcel Walters (a pseudonym) [2024] ACTCC 3
Case: [2024] ACTCC 3
Decision Date: 10 July 2024

CaseChat Overview and Summary

The Police sought to convict Marcel Walters on two counts related to sexual offences involving a child. The case was heard in the County Court of Victoria. The first count related to an attempted act of incest, and the second count involved an act of indecency on a person under the age of 10 years. The legal issues before the court were whether the acts alleged in each count were proven beyond reasonable doubt.

The court considered the evidence presented by the prosecution and the defence. It was necessary to determine if the prosecution had established the elements of the offences beyond reasonable doubt. The court examined the credibility of the witnesses, the reliability of the evidence, and the applicable legal standards. In relation to the first count, the court concluded that there was insufficient evidence to prove the attempted act of incest beyond reasonable doubt. However, the court found that the prosecution had successfully proven the act of indecency beyond reasonable doubt.

As a result of the court's decision, the first count was not proven, while the second count was found to be proven beyond reasonable doubt. The court's final orders reflected these findings, with the first count being dismissed and the second count being upheld. The implications of this decision would have significant consequences for the defendant, including potential penalties for the proven offence.

Orders

Orders of the court

Count 1 - not proved

Count 2 - proved beyond reasonable doubt

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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