CRIMINAL LAW – trial – judge alone – eight counts of sexual intercourse with a person above the age of 10 years but under the age of 16 years – two counts of procuring a child for the production of child pornography – two counts of possessing child pornography – one count of suggesting to a child using electronic means to commit an act of a sexual nature – three complainants.
CRIMINAL LAW – trial – judge alone – plea of guilty accepted on four counts concerning one complainant during the trial – Crown declined to proceed to prosecute two further counts – trial proceeded on remaining seven counts.
CRIMINAL LAW – trial – judge alone – two counts of procuring a child for the production of child pornography – accused found not guilty.
CRIMINAL LAW – trial – judge alone – four counts of sexual intercourse with a person above the age of 10 years but under the age of 16 years – accused found not guilty.
CRIMINAL LAW – trial – judge alone – one count of suggesting to a child using electronic means to commit an act of a sexual nature – whether taking photograph is an act of indecency - accused found guilty
PRACTICE AND PROCEDURE – recorded evidence from pre-trial hearing – use of recorded evidence - legislation unclear whether the recorded evidence should be treated as a witness giving evidence or as an exhibit
Judge: Refshauge J Supreme Court of the ACT Date: 5 November 2010
IN THE SUPREME COURT OF THE) ) No. SCC 397 of 2008 AUSTRALIAN CAPITAL TERRITORY )
R
v
DM
ORDER
Judge: Refshauge J Date: 5 November 2010 Place: Canberra
THE COURT ORDERS THAT:
The accused is guilty of the first count on the indictment.
The accused is guilty of the second count on the indictment.
The accused is guilty of the third count on the indictment.
The accused is discharged in respect of the fourth count…
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.
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Details
AGLC
R v DM [2010] ACTSC 137
Case
[2010] ACTSC 137
Decision Date
CaseChat Overview and Summary
In the case of R v DM, the accused faced a trial before a single judge on multiple charges related to sexual offences against children. The charges included eight counts of sexual intercourse with a person above the age of 10 but under the age of 16, two counts of procuring a child for the production of child pornography, two counts of possessing child pornography, and one count of suggesting to a child using electronic means to commit an act of a sexual nature. The case involved three complainants. During the trial, the accused entered a guilty plea on four counts concerning one complainant, while the Crown declined to proceed on two further counts. Consequently, the trial proceeded on the remaining seven counts.
The primary legal issues before the court were whether the accused was guilty of the remaining seven counts on the indictment. The court had to determine the accused's guilt on two counts of procuring a child for the production of child pornography, four counts of sexual intercourse with a person above the age of 10 but under the age of 16, and one count of suggesting to a child using electronic means to commit an act of a sexual nature. Additionally, the court needed to address the issue of whether taking a photograph could be considered an act of indecency.
The court found the accused not guilty on the two counts of procuring a child for the production of child pornography and the four counts of sexual intercourse with a person above the age of 10 but under the age of 16. However, the court found the accused guilty on the first count of suggesting to a child using electronic means to commit an act of a sexual nature, concluding that taking a photograph was an act of indecency. The court's reasoning was based on the evidence presented, including recorded evidence from a pre-trial hearing, and the interpretation of the relevant legislation.
The final orders of the court were that the accused was found guilty of the first count on the indictment, while being found not guilty of the remaining six counts. The court's decision was based on the specific facts and evidence presented during the trial, and the interpretation of the relevant legal provisions.
Orders
Orders of the court
1.
The accused is guilty of the first count on the indictment.