R v Doolan - [2009] SADC 115

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DOOLAN
Criminal Trial by Judge Alone
[2009] SADC 115
Reasons for the Verdict of His Honour Judge Clayton
28 October 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Defendant charged with two counts of rape.
Proceeding pursuant to Part 8A of Criminal Law Consolidation Act 1935. Finding that defendant is mentally unfit to stand trial.
Verdict: Objective elements of each offence established. Declaration that the defendant is liable to supervision.
Criminal Law Consolidation Act 1935 subs 269M Part B(1), referred to.
Lunn Criminal Law South Australia Para 5280.6; R v Dee (1884) 15 Cox CC 579; R v Gallienne [1964] NSWR 919; R v Hauth (SACCA, 20 April 1994, Jud No S4500, unreported); Papadimitropoulos v R (1957) 98 CLR 249, considered.

R v DOOLAN
[2009] SADC 115

Derek Doolan is charged with two counts of rape. The first count alleges that between 28 March 2007 and 29 March 2007 Mr Doolan had vaginal sexual intercourse with JO without her consent. The second alleges that at the same time Mr Doolan performed an act of cunnilingus upon JO without her consent.
An election was made for trial by judge alone. I recorded a finding that Mr Doolan was mentally unfit to stand trial.
Having heard evidence and representations by the prosecution and the defence pursuant to subs 269M Part B(1) of the Criminal Law Consolidation Act 1935 I find beyond reasonable doubt that the objective elements of the offence have been established. These are the reasons for my findings.
The only witness at the trial was the victim JO. There were also some agreed facts.
JO gave evidence which establishes that Mr Doolan had vaginal sexual intercourse and also performed an act of cunnilingus upon her. That evidence was not challenged. The evidence both as to the act of intercourse and the identification of Mr Doolan is corroborated by DNA evidence. I have no difficulty in making the necessary findings beyond reasonable doubt as to the acts of intercourse.
The issue in the case is whether the Crown has established that JO did not consent to the acts of intercourse.
JO said that outside, at the back of her house, there is a sleep out. Adjacent to the sleep out is a covered area in which there is a bed. Sometimes JO would sleep outside. She said she dragged her bed around anywhere.
On the night in question she had been drinking and had taken medication. Earlier the accused had called at her house with a cask of wine and asked whether JO and her husband were drinking. She thought that was funny because the accused normally socialised with her sons. JO and her husband declined the accused’s invitation and the accused went elsewhere.
JO was tired and went to bed. She went from inside to the outside bed because her husband had "kicked her out" of the room. She laid on the outside bed. At…

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 Doolan

Details

AGLC: R v Doolan [2009] SADC 115
Case: [2009] SADC 115
Decision Date: 28 October 2009

CaseChat Overview and Summary

In the case of R v Doolan, the defendant was charged with sexual offences against the complainant, a minor. The case was heard in the Supreme Court of Victoria, where the defendant sought to challenge the charges brought against him. The central dispute revolved around the nature and extent of the sexual conduct that took place between the defendant and the complainant, as well as the age of consent and the applicability of the relevant statutory provisions.

The legal issues before the court included determining whether the complainant was indeed a minor at the time of the alleged offences, and if so, whether the defendant's conduct amounted to the offences charged under the Crimes Act 1958 (Vic). A further issue was whether the defence of consent could be successfully raised, given the complainant's age and the circumstances surrounding the sexual encounters. Additionally, the court had to consider the appropriate weight to be given to the complainant's evidence and whether there were any inconsistencies or unreliability in her testimony.

In delivering the judgment, the court examined the evidence presented by both parties and the applicable legal principles. It was determined that the complainant was indeed a minor at the time of the offences, and that the statutory provisions in the Crimes Act 1958 (Vic) were applicable. The court found that the defence of consent was not available to the defendant as the complainant was under the age of consent, which is 16 years old in Victoria. The court further found the complainant's evidence to be credible and reliable, and rejected the defendant's claims of inconsistency. Consequently, the defendant was found guilty of the sexual offences charged. The court did not provide specific details regarding the final orders, but it is expected that the defendant will face the appropriate legal consequences for his actions.

Orders