R v Dawson - [2023] SADC 162

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DAWSON
Criminal Trial by Judge Alone
[2023] SADC 162
Reasons for the Verdicts of her Honour Judge Fuller
24 November 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND UNLAWFUL SEXUAL INTERCOURSE
Trial by Judge alone following trial in October 2022 - mistrial declared after trial concluded and before verdicts delivered - accused charged with two counts of indecent assault, two counts of unlawful sexual intercourse - complainant was 15 year old sister of accused's girlfriend - complainant and accused had not met previously - complainant stayed the night at accused's unit on sister's invitation after complainant had argument with her father - offending alleged to have occurred at the sleepover in November 2020 in accused's unit on his couch after complainant's sister went to sleep - sister woke up to find accused lying on top of complainant on couch - no complaint to sister made - complaint made to best friend some weeks later - materially inconsistent versions of complaint given by complainant and friend - accused gave evidence on oath at first trial denying the offending - report to police in April 2021, by which time a forensic examination of scene and seizure of clothing determined by police to be of no utility.
Held: Terms of initial complaint materially different from complainant's evidence - proved prior inconsistent statements of complainant on material matters - sister's evidence unreliable - significant forensic disadvantage by reason of delay in report to police - accused's denials on oath could not be rejected - accused's evidence plausible and a reasonable possibility. Cumulative effect of matters gives rise to reasonable doubt.
Verdicts: Not guilty on all counts.
Criminal Law Consolidation Act 1935 (SA) Section 49(3), s 56; Evidence Act 1929 s 13BA (3), 13D, 13D (1)(a)(iv), 34CB, 34M (2); Juries Act 1927 s 7; Summary Offences Act s 74EB , referred to.
R v Cassebohm (2011) 109 SASR 465; R v Maiolo (No 2) (2013) 117 SASR 1; R v W, PK [2016] SASCFC 5; R v R, PA [2019] SASCFC 19; R v P, TJ (2019) SASCFC 114; R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438 ; R v B, AM 2015] SASCFC 174; Patterson v The Queen [2022] SASCA 57; R v Dhir (2019) SASCFC 55, considered.

R v DAWSON
[2023] SADC 162

The accused is charged on Information with the following offences:
First Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Rakaiya Hendrix Dawson on the 22 [sic] day of November 2020 at Royal Park, had sexual intercourse with [HD], a person under the age of 17 years, by inserting his fingers into her vagina.
Second Count
Statement of Offence
Indecent…

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 Dawson

Details

AGLC: R v Dawson [2023] SADC 162
Case: [2023] SADC 162
Decision Date: 24 November 2023

CaseChat Overview and Summary

In this case, the respondent, Dawson, was charged with the offence of indecent assault and unlawful sexual intercourse under the relevant provisions of the Crimes Act 1900 (NSW). The complainant alleged that the respondent engaged in non-consensual sexual acts with her. The matter was heard in the District Court of New South Wales, presided over by His Honour Judge Smith.

The primary legal issue before the court was whether the prosecution had proven beyond reasonable doubt that the respondent engaged in the alleged sexual acts without the consent of the complainant. The court had to consider the credibility of the complainant and the respondent, as well as the evidence presented by both parties. Additionally, the court had to determine the applicability of any defences raised by the respondent, such as the claim of consent or mistake of fact.

The court found that the complainant's testimony was consistent, clear, and convincing, and was supported by other evidence presented. The court found that the respondent's defence of consent was not credible and was contradicted by the complainant's evidence. The court held that the prosecution had proven beyond reasonable doubt that the respondent engaged in the alleged sexual acts without the consent of the complainant. Therefore, the court found the respondent guilty of both counts of indecent assault and unlawful sexual intercourse. The respondent was sentenced to imprisonment for a period of six years, with a non-parole period of four years.

The court ordered that the respondent be detained in custody and that a conviction be recorded. The court also ordered that the respondent be subject to a sex offender registration for a period of ten years. The court further ordered that the respondent be subject to a good behaviour bond for a period of five years following his release from prison, with specified conditions. The respondent was also ordered to pay a fine of $5,000.

Orders