R v DM

Case [2010] ACTSC 137


R v DM
[2010] ACTSC 137 (5 November 2010)

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

Crimes Act 1900 (ACT), ss 64, 66(1), 66(6)
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 40, 40E, 40K, 40S(1), 40S(2), 40S(3), Div 4.2B
Sexual and Violent Offences Legislation Amendment Act 2008 (ACT) which amended the Evidence (Miscellaneous Provisions) Act 1991 (ACT)
Supreme Court Act 1933 (ACT), ss 68B, 68C

R v Mulcahy [2010] ACTSC 98
R v Murray (1987) 11 NSWLR 12.
WGC v The Queen (2007) 233 CLR 66
R v Markuleski (2001) 52 NSWLR 82
R v Court [1989] AC 28
R v Manson (New South Wales Court Criminal Appeal, Gleeson CJ, Clarke JA, Sully J, 60773/91, 60820/91, 17 February 1993, unreported)
R v Morton (1998) 143 FLR 268
R v Taylor [2010] ACTSC 121
Harkin (1989) 38 A Crim R 296,
R v AWC [2003] SASC 416
DW v The Queen (2004) 150 A Crim R 139
Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241
R v Forsti [2010] ACTSC 85

No.  SCC 397 of 2008

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:

  1. The accused is guilty of the first count on the indictment.

  1. The accused is guilty of the second count on the indictment.

  1. The accused is guilty of the third count on the indictment.

  1. The accused is discharged in respect of the fourth count…

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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.

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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