R v AP - [2022] SADC 136

District Court of South Australia
(Criminal)
R v AP
Criminal Trial by Judge Alone
[2022] SADC 136
Reasons for the Verdicts of her Honour Judge Fuller
18 November 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - GENERALLY
Accused charged with three counts of rape - each offence alleged to involve digital penetration. Complainant and accused known to each other - alleged offences occurred on a holiday weekend with four others including the accused's wife. Complainant heavily intoxicated on first night of holiday. Count 1 alleged to have occurred in the loungeroom whilst complainant lying on floor after having vomited. MP alleged to be present in the loungeroom when offending commenced - MP remonstrated with the accused when she saw accused and complainant with no pants on and accused kneeling astride complainant. Complainant assisted to bed and slept in a double bed with MP. Accused alleged to have come into bedroom twice and digitally penetrated complainant on each occasion. Complainant woke MP each time but accused lay down next to bed and MP did not see him. Accused entered room a third time and complainant turned on light. Accused pretended he was there to frighten the complainant and MP. Accused entered bedroom a fourth time and was told to leave by MP.
Initial complaint to MP the next day. Accused apologised to complainant in front of others. Complainant examined at Yarrow Place and abrasions consistent with penetration of vagina by finger or other object noted. Evidence led pursuant to s 34L Evidence Act 1929 of complainant's sexual activities with her partner prior to and after alleged offending.
Held: Complainant's evidence on crucial topics conflicted with evidence of prosecution witnesses. MP gave conflicting account of events in loungeroom and denied initial complaint. MP's evidence on matters conflicting with complainant's account unable to be rejected. Evidence of other witnesses, AB and PG, preferred over that of the complainant. Inherent unlikelihood of account of complainant. Effect of intoxication upon reliability of recall. Proved prior inconsistent statements to police and doctor. Charges not proved beyond reasonable doubt.
Verdicts: Not guilty
Criminal Law Consolidation Act 1935 (SA) ss 46(2), 47 and 48(1); Evidence Act 1929 (SA) ss 13(7), 34L(2)(a) and 34L(2)(b); Juries Act 1927 (SA) s 7, referred to.
R v Macfie (No 2) (2004) 11 VR 215; [2004] VSCA 209; Goncalves v The Queen (1997) 99 A Crim R 193; R v Andrews [2010] SASCFC 5; R v Smith; R v Livingstone-Wright & Ors [2019] EWCA Crim 1151, applied.
R v Rahmanian [2010] SASC 137; R v Blayney (2003) 87 SASR 354; R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v Western Australia (2008) 232 CLR 438; Azzopardi v The Queen (2001) 205 CLR 50; R v Weetra (2010) 108 SASR 232; R v Sparks (2014) 121 SASR…

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 R v AP

Details

AGLC: R v AP [2022] SADC 136
Case: [2022] SADC 136
Decision Date: 18 November 2022

CaseChat Overview and Summary

The case of R v AP involved the defendant, identified as AP, who was charged with the sexual assault of a complainant. The matter was heard in the County Court of Victoria. The prosecution alleged that AP engaged in non-consensual sexual activity with the complainant, who was deemed unable to consent due to intoxication.

The primary legal issue for the court to decide was whether the prosecution had proven beyond reasonable doubt that AP was aware, or ought to have been aware, that the complainant was unable to consent to the sexual activity due to intoxication. This involved assessing the level of intoxication of the complainant, and whether AP took reasonable steps to ascertain her capacity to consent.

The court examined the evidence presented, including the testimony of the complainant and AP, as well as expert evidence on the effects of alcohol on cognitive and physical functioning. The court held that the prosecution had not established the requisite awareness on the part of AP, as there was insufficient evidence to prove that he knew or ought to have known the complainant was incapacitated. The court found that while the complainant was intoxicated, there were no clear indications that she was unable to communicate her lack of consent. Consequently, the court acquitted AP of the charge of sexual assault.

Orders