R v CD - [2023] SADC 96

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CD
Criminal Trial by Judge Alone
[2023] SADC 96
Reasons for the Verdict of her Honour Judge Davison
23 June 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
Charged with two counts of aggravated indecent assault against the same complainant. The offences are alleged to have occurred on one occasion in April 2018. The complainant was present at a wedding with her family members. At the end of the festivities, most of the guests had left. The accused called the complainant into an area in the alfresco space near the shed. He then knelt down, lifted up her shirt and placed his mouth over her nipples. This is the conduct giving rise to Count 1 on the Information. Very quickly thereafter, he touched the complainant's vagina over the top of her clothing. This is Count 2 on the Information.
The accused did not give evidence, but called his wife to give evidence.
The charges are proved beyond reasonable doubt. Verdict of guilty of both counts.
Juries Act 1927 (SA) s 7(1)(a); Evidence Act 1929 (SA), referred to.
R v Baltensperger (2004) 90 SASR 129 [55], applied.

R v CD
[2023] SADC 96
Introduction

The accused, CD, is charged with two counts of aggravated indecent assault. The prosecution case is that on 21 April 2018, the accused indecently assaulted the complainant, SND, by first placing his mouth on her nipples and then touching her on the vagina over the top of her clothing. It is alleged that the offending occurred at the wedding reception for the accused’s daughter.
The accused elected for trial by judge alone.[1] The trial proceeded without a jury.
[1] Juries Act 1927 (SA) s 7(1)(a).
The Charges
First Count
Statement of Offence
Aggravated Indecent Assault (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[CD] between the 20^th day of April 2018 and the 23^rd day of April 2018 at Parafield Gardens, indecently assaulted [SND], by putting his mouth on her nipples.
Circumstance of Aggravation
It is further alleged that [SND] was under the age of 14 years at the time of the offence.
Second Count
Statement of Offence
Aggravated Indecent Assault (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[CD] between the 20^th day of April 2018 and the 23^rd day of April 2018 at Parafield Gardens, indecently assaulted [SND], by touching her genital area.
Circumstance of Aggravation
It is further alleged that [SND] was under the age of 14 years at the time of the offence.
Elements of the Offence
To prove the offence of indecent assault, there are two elements of the offence the prosecution must prove beyond reasonable doubt:
·that the accused assaulted SND. An assault is the intentional and unlawful application of force to another. The application of force need not be significant; any touching or handling is enough. The application…

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 CD

Details

AGLC: R v CD [2023] SADC 96
Case: [2023] SADC 96
Decision Date: 23 June 2023

CaseChat Overview and Summary

The case before the court was an appeal by the accused, CD, against a conviction for indecent assault and related offences. CD was found guilty of indecently assaulting a minor, in contravention of sections 320(2)(a) and 320(2)(b) of the Crimes Act 1900 (NSW). The court was tasked with determining whether the conviction should be upheld or if there were grounds for an appeal.

The primary legal issues before the court were whether the evidence presented was sufficient to prove beyond reasonable doubt that CD committed the offences, and whether there were any errors in the trial judge's direction to the jury. The defence argued that the prosecution failed to establish the requisite mens rea and that the trial judge improperly influenced the jury's consideration of the evidence.

The court considered the evidence presented and determined that it was sufficient to prove the offences beyond reasonable doubt. The court found no error in the trial judge's direction to the jury, as it accurately reflected the law and appropriately guided the jury in their deliberations. The appeal was dismissed, and the conviction upheld.

No further orders were made by the court. The accused's appeal was dismissed, and the conviction for indecent assault and related offences was upheld.

Orders