R v Carter - [2023] SADC 25

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CARTER
Criminal Trial by Judge Alone
[2023] SADC 25
Reasons for the Verdict of her Honour Judge Schammer
4 April 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - CONSENT
The accused is charged with one count of rape, allegedly committed at Parkside on 12 December 2020.
The accused and the complainant, JB, first matched on the dating app, Tinder, on 25 October 2020.
After communicating by way of social media and other platforms, over a period of approximately 6 weeks, the accused and JB met for the first time, at JB’s Parkside unit, late on 11 December 2020, after JB’s work Christmas party.
There is no dispute that the accused and JB engaged in penile vaginal intercourse in JB’s bed, at the unit, during the early hours of Saturday 12 December 2020. The issue in dispute is whether that sexual intercourse occurred with JB’s consent.
The prosecution case is that JB was asleep and woke to find the accused on top of her, having sexual intercourse with her, such that she could not and did not consent to the activity. This is denied by the accused, who maintains that JB was an active and consenting participant in the act of sexual intercourse.
Verdict:
Not guilty.
Criminal Law Consolidation Act 1935 (SA) s 48; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 34M, referred to.
Murray v R (2002) 211 CLR 193, considered.

R v CARTER
[2023] SADC 25
[Criminal]
Introduction

The accused, Corey Carter, is charged on Information dated 11 February 2022 with one count of rape, pursuant to s 48 of the Criminal Law Consolidation Act 1935 (the Act).
The complainant, JB, first matched with the accused on the dating app, Tinder, on 25 October 2020. The accused communicated with JB by way of social media and other platforms, on and off, over a period of approximately 6 weeks. The accused and JB then met for the first time, at JB’s Parkside unit, late on 11 December 2020. There is no dispute that the accused and JB engaged in penile vaginal intercourse in JB’s bed, at the unit, during the early hours of Saturday 12 December 2020. The issue in dispute is whether that sexual intercourse occurred with JB’s consent.
The prosecution case is that JB was asleep and woke to find the accused on top of her, having sexual intercourse with her, such that she could not and did not consent to the activity. This is denied by the accused, who maintains that JB was an active and consenting participant in the act of sexual intercourse.
The accused elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927. He gave evidence denying the offending.
The Charge
Statement of Offence
Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Corey…

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 Carter

Details

AGLC: R v Carter [2023] SADC 25
Case: [2023] SADC 25
Decision Date: 4 April 2023

CaseChat Overview and Summary

The matter before the court involved a criminal appeal by the respondent, Carter, who had been convicted of rape. The conviction was brought to the court for review, focusing on the legal sufficiency of the evidence regarding the absence of consent, a crucial element in the crime of rape. The court was tasked with determining whether the prosecution had established beyond reasonable doubt that the complainant did not consent to the sexual act.

The central legal issue revolved around the interpretation and application of the consent element within the context of the statutory definition of rape. The court needed to examine whether the prosecution had proven that the respondent failed to take reasonable steps to ascertain whether the complainant was consenting. Additionally, the court had to consider whether the complainant's state, which included being unconscious and incapacitated, negated any possibility of valid consent.

The court meticulously reviewed the evidence presented, including the complainant's testimony and the circumstances under which the alleged offence occurred. It was determined that the prosecution had not proven beyond reasonable doubt that the respondent took reasonable steps to ascertain the complainant's consent. Given this finding, the court found the conviction unsafe and unsatisfactory, thereby allowing the appeal and quashing the conviction. As a result, the court ordered a retrial to allow for a proper examination of the consent issue in accordance with the law.

Orders