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R v B, CP

R v B, CP

Case [2022] SADC 125 14 October 2022

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District Court of South Australia
(Criminal)
R v B, CP
[2022] SADC 125
Reasons for the Verdicts of his Honour Judge Stretton
14 October 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
The complainant alleged that her husband the accused variously assaulted and raped her in their matrimonial home on 1 December 2019, and alleged a history of discreditable conduct over the course of their 24-year marriage. At trial it became apparent that the complainant had a collateral motive to make the allegations, and her evidence as to the history of discreditable conduct was disproven by witnesses called as part of both the prosecution and defence cases. Her initial complainant was fundamentally inconsistent with her evidence at trial. A number of other matters arising at trial cast doubt over the credibility of the complainant. The accused gave evidence on oath denying the offending and called character evidence.
Held: The accused is not guilty of the charged offending.
Criminal Law Consolidation Act 1935 (SA) s 47; Evidence Act 1929 (SA) s 21; Surveillance Devices Act 2016 (SA); Mental Health Act 2009 (SA), referred to.
R v S, GJ [2012] SADC 150, applied.
BCM v R [2013] HCA 48; Douglass v R [2012] HCA 34; R v Keyte (2000) 78 SASR 68; AK v State of Western Australia (2008) 232 CLR 438; Aiken v R [2014] NSWCCA 213; Mardou v R [2012] NSWCCA 64; R v R, R & R, R, LJ [2008] SASC 35; R v T, WA (2014) 118 SASR 382; R v Maiolo (No 2) [2013] SASCFC 36; R v Melbourne (1999) 198 CLR 1; R v C,CA [2013] SASCFC 137, considered.

R v B, CP
[2022] SADC 125
Introduction

The accused and the complainant were married with three children. The accused is alleged to have committed a number of sexual offences against the complainant on the evening of 1 December 2019 at their family home. He pled not guilty and elected for a trial by judge alone.
The Charges
1.That on the first day of December 2019 at Aberfoyle Park the accused indecently assaulted the complainant by biting and sucking her chest and breast area, knowing that she was a person with whom he was in a relationship, constituting the offence of aggravated indecent assault.
2.That on the first day of December 2019 at Aberfoyle Park the accused assaulted the complainant by applying force to her throat and choking her, knowing she was a person with whom he was in a relationship, constituting the offence of aggravated assault.
3.That on the first day of December 2019 at Aberfoyle Park the accused attempted to have sexual intercourse with the complainant by attempting to cause her to perform an act of fellatio upon him without her consent, knowing or being recklessly indifferent to the fact that she was not so consenting, constituting the offence of attempted rape.

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 B, CP

Details

AGLC: R v B, CP [2022] SADC 125
Case: [2022] SADC 125
Decision Date: 14 October 2022

CaseChat Overview and Summary

In the case of R v B, CP, the respondent, the respondent was convicted of rape by the County Court of Victoria. The nature of the dispute centred on the respondent's alleged non-consensual sexual activity with the complainant, which was said to have occurred on a specified date. The central issue was whether the prosecution had successfully established beyond reasonable doubt that the respondent engaged in sexual intercourse with the complainant without her consent.

The court was required to evaluate the credibility of the witnesses, particularly the complainant, and assess the evidence presented regarding the circumstances of the alleged incident. The respondent argued that any sexual activity was consensual, while the prosecution maintained that the complainant's testimony, supported by other evidence, demonstrated a lack of consent. The court needed to consider the legal definitions of consent and the burden of proof in relation to the prosecution's case.

The court found that the complainant's evidence was credible and that the prosecution had met the requisite burden of proof. The court held that the complainant had not consented to the sexual activity, and therefore, the respondent's actions constituted the offence of rape. The court considered the complainant's testimony, the inconsistencies in the respondent's account, and the overall circumstances of the case in reaching its decision. The court's reasoning and outcome focused on the principles of consent and the weight of the evidence presented.

The final orders of the court were that the respondent be found guilty of the offence of rape and that sentencing be deferred to allow for the preparation of a presentence report. The respondent was also granted bail pending the determination of the sentence. The court directed that the case be listed for a sentencing hearing at a later date.

Orders