R v Clarke - [2020] NSWDC 881

District Court

New South Wales

Medium Neutral Citation: R v Clarke [2020] NSWDC 881
Hearing dates: 28, 29, 30 April 2020 & 01, 04, 05, 06 May 2020
Date of orders: 14 May 2020 & 13 August 2020
Decision date: 14 May 2020
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
The accused is found guilty of count 1, 2 and 3

Catchwords:
CRIME — Child sex offences — Sexual intercourse with child <10
CRIME — Child sex offences — Sexual intercourse with child <16
CRIMINAL PROCEDURE — Trial — Judge alone
CRIMINAL PROCEDURE — Trial — Judge alone — Reasons of trial judge

Legislation Cited:
Crimes Act1900
Criminal Procedure Act 1986
Evidence Act 1995
Evidence Audio and Audio Visual Links) Regulation 2015

Cases Cited:
Abbott v The Queen [2017] NSWCCA 148
Decision Restricted v R [2019] NSWCCA 234
Edwards v The Queen (1993) 178 CLR 193
Ewen v R [2015] NSWCCA 117
Fleming v R (1998) 197 CLR 250
GM v R [2017] NSWCCA 78
Hughes v The Queen (2017) 344 ALR 187
IMM v The Queen (2016) 257 CLR 300
Mahmoud v Western Australia (2008) 232 CLR 397
R vBauer (a pseudonym) [2018] HCA 40
R v Murray (1987) 11 NSWLR 12
Regina v Markuleski [2001] NSWCCA 290
Zoneff vTheQueen (2000) 200 CLR 234

Category: Principal judgment
Parties:
Regina (Crown)
Darrell Charles Clarke (accused)
Representation:
Donna Daleo (Crown Prosecutor)
Taran Ramrakha (counsel for the accused)
Director of Public Prosecutions (NSW) (Crown)
Pope & Spinks (accused)

File Number(s): 2017/00121873 & 2016/00321508
Publication restriction: Statutory non-publication order for the identity of the complainants and a further order made in Court that there is to be no publication of the names of the complainants or of any information which may enable their identities to be ascertained

REVISED JUDGEMENT

I find the accused guilty of the offences set out in count 1 that he, between the 1st day of January 2016 and the 26th day of October 2016 at Leumeah in the State of New South Wales did have sexual intercourse with TO, a child then under the age of ten years, namely, six or seven years.
I find the accused guilty of count 2, that he between the 1st day of January 2016 and the 26th day of October 2016 at Leumeah in the State of New South Wales did assault TO and at the time of that assault committed an act of indecency on TO, a child then under the age of 16 years, namely, six or seven years.
I find the accused guilty of count 3, that he between the 23rd day of October 2016 and the 26th day of October 2016 at Leumeah in the State of New South Wales did have sexual intercourse with SO, a child then under the age of ten years, namely four years.
I am therefore not required to return a verdict in respect of count 4 which was placed in the alternative to count 3. In each case the…

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 Clarke

Details

AGLC: R v Clarke [2020] NSWDC 881
Case: [2020] NSWDC 881
Decision Date: 14 May 2020

CaseChat Overview and Summary

The case of R v Clarke involved the defendant who was charged with multiple counts of sexual intercourse with a child under the age of 16. The proceedings were heard by a single judge in the County Court of Victoria. The defendant was accused of engaging in sexual acts with a child over a period of time. The case raised significant legal issues regarding the credibility of the child's testimony, the corroboration of the child's evidence, and the application of the law concerning child sex offences. The court was required to determine whether the prosecution had established the defendant's guilt beyond reasonable doubt, considering the child's testimony and any other evidence presented. The judge examined the evidence meticulously, including the child's statements, medical evidence, and any other relevant material. After thorough deliberation, the judge found the defendant guilty on all counts, concluding that the prosecution had successfully demonstrated the defendant's culpability. The reasoning provided by the judge detailed the evaluation of the child's testimony, the consistency of the evidence, and the application of legal principles pertinent to child sex offences. The final orders of the court were that the accused was found guilty on count 1, 2, and 3, as charged.

Orders

Orders of the court

The accused is found guilty of count 1, 2 and 3

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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Medium Neutral Citation:	R v Clarke [2020] NSWDC 881
Hearing dates:	28, 29, 30 April 2020 & 01, 04, 05, 06 May 2020
Date of orders:	14 May 2020 & 13 August 2020
Decision date:	14 May 2020
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	The accused is found guilty of count 1, 2 and 3
Catchwords:	CRIME — Child sex offences — Sexual intercourse with child <10 CRIME — Child sex offences — Sexual intercourse with child <16 CRIMINAL PROCEDURE — Trial — Judge alone CRIMINAL PROCEDURE — Trial — Judge alone — Reasons of trial judge
Legislation Cited:	Crimes Act1900 Criminal Procedure Act 1986 Evidence Act 1995 Evidence Audio and Audio Visual Links) Regulation 2015
Cases Cited:	Abbott v The Queen [2017] NSWCCA 148 Decision Restricted v R [2019] NSWCCA 234 Edwards v The Queen (1993) 178 CLR 193 Ewen v R [2015] NSWCCA 117 Fleming v R (1998) 197 CLR 250 GM v R [2017] NSWCCA 78 Hughes v The Queen (2017) 344 ALR 187 IMM v The Queen (2016) 257 CLR 300 Mahmoud v Western Australia (2008) 232 CLR 397 R vBauer (a pseudonym) [2018] HCA 40 R v Murray (1987) 11 NSWLR 12 Regina v Markuleski [2001] NSWCCA 290 Zoneff vTheQueen (2000) 200 CLR 234
Category:	Principal judgment
Parties:	Regina (Crown) Darrell Charles Clarke (accused)
Representation:	Donna Daleo (Crown Prosecutor) Taran Ramrakha (counsel for the accused) Director of Public Prosecutions (NSW) (Crown) Pope & Spinks (accused)
File Number(s):	2017/00121873 & 2016/00321508
Publication restriction:	Statutory non-publication order for the identity of the complainants and a further order made in Court that there is to be no publication of the names of the complainants or of any information which may enable their identities to be ascertained