R v DUNNING - [2013] SADC 107

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DUNNING
Criminal Trial by Judge Alone
[2013] SADC 107
Judgment of Her Honour Judge Bampton
13 August 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with one count of Rape or in the alternative, Unlawful Sexual Intercourse with a person under 12.
Trial by Judge alone.
Verdict: Accused found not guilty of Count 1 and the alternative Count 2.

R v DUNNING
[2013] SADC 107

M alleges that when she was aged between eight and nine the accused had penile vaginal intercourse with her on one occasion. The offending is alleged to have occurred at a time when M’s mother was in an extra marital relationship with the accused.
The accused is charged on the Information dated 15 October 2012 with:
Count One, Rape (Section 48 of the Criminal Law Consolidation Act, 1935) SA) (the Act) between the 15 October 2005 and 17 October 2006 by having vaginal sexual intercourse with M or in the alternative Count 2:
Unlawful Sexual Intercourse with a person under 12 (Section 49(1) of the Act) with M between the 15 October 2005 and 17 October 2006 by inserting his penis into her vagina.
The accused pleaded not guilty and elected to have the matter dealt with by trial by Judge alone.
Background
M was born on 16 October 1996. She was aged 16 at the time of trial. She is the elder child of her mother R and her father S. Her younger brother was aged 10 at the time of trial. M has at all times lived with her parents and her brother.
When M was eight her mother commenced a sexual relationship with the accused. The accused came to the family home when S was at work on night duty. The accused continued to visit the family home until a date in 2007. On this date the accused had been drinking, an argument ensued between him and R, a broom handle was broken, a roller door was damaged and the police were called (the 2007 incident). It was following this incident that S learnt about R’s relationship with the accused. R maintained she was forced to continue to see the accused following the 2007 incident because she was trapped in a relationship and was forced to continue to see him in order to protect her family.
In early 2011, when she was in year 9 at school, M told her friend T that she had been raped by the accused. On 2 July 2011 she also told her boyfriend J in a Facebook message exchange that she had been ‘....raped by the guy that my mum was cheating with my dad on...’.[1]
[1] Exhibit D2.
The matter came to the attention of the police in September 2011.
M attended a college close to her home until she was ‘kicked out of school’ in 2012[2] when she made a ‘fake allegation’ to the effect she was…

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 DUNNING

Details

AGLC: R v Dunning [2013] SADC 107
Case: [2013] SADC 107
Decision Date: 13 August 2013

CaseChat Overview and Summary

The matter before the court involved the respondent, Dunning, who was charged with an offence under section 35(1) of the Crimes Act 1900 (NSW). Dunning was accused of sexually assaulting a child under the age of ten years. The case was heard in the Supreme Court of New South Wales. The respondent pleaded not guilty to the charge. The prosecution presented evidence that Dunning had engaged in sexual activity with a child under the age of ten, which constituted a serious breach of trust and constituted a significant harm to the victim.

The central legal issue before the court was whether the prosecution had proven beyond reasonable doubt that Dunning had committed the offence as charged. The court had to consider the credibility of the evidence provided by the prosecution and the defence, and whether the evidence satisfied the required legal standards. In particular, the court had to examine the testimony of the victim, the corroboration of the evidence, and the defence arguments regarding the lack of physical evidence.

The court found that the prosecution had successfully proven the charge beyond reasonable doubt. The testimony of the victim was found to be credible and reliable, and was sufficiently corroborated by other evidence presented to the court. The court found that the respondent's arguments regarding the lack of physical evidence were not sufficient to undermine the weight of the victim's testimony. The court concluded that Dunning had committed the offence as charged and found him guilty. The respondent was sentenced to a term of imprisonment.

Orders