R v F, MD - [2017] SADC 103

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v F, MD
Criminal Trial by Judge Alone
[2017] SADC 103
Reasons for the Verdicts of His Honour Judge Cuthbertson
27 September 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
- AGGRAVATED INDECENT ASSAULT
Accused charged with seven counts of Indecent Assault, against two complainants. Accused would frequently tickle and / or rub the complainants, both over and under their clothing. Prosecution allege defendant had prurient purpose. Defence case was that the actions either did not occur or were mere horseplay and therefore could not be regarded as indecent.
Whether accused was engaging in mere horseplay – whether conduct occurred in circumstances of indecency – whether actions had “sexual connotation” – whether evidence cross-admissible.
Verdicts: guilty of count five; not guilty of counts one to four and six and seven.
Evidence Act 1929 (SA) s 34P, referred to.
R v Harkin (1989) 38 A Crim R 296; R v C, M [2014] SASCFC 116, applied.
R v Court [1989] AC 28, considered.

R v F, MD
[2017] SADC 103
Summary of Case

The accused is presented on an Information of 8 March 2017 charged with seven counts of Indecent Assault, some of which are aggravated. Six counts are against a complainant, M, and one count, count seven, is in respect of a second complainant, JA.
M is now 18 years old and JA is now 13 years old. They are half-sisters with the same mother.
The accused was a close family friend of their family. During the relevant period he lived first at Direk and then at Paralowie with his partner, Melissa and children JL and T.
The two complainants would frequent the home of the accused. JA became friends with the accused’s younger daughter T. M had previously formed a close friendship with the accused’s step-daughter, JL.
The alleged offending spans a period of about seven years from late 2007 to mid-2014.
M was born on 3 October 1998. She began staying over at the accused’s house at Direk on weekends and school holidays. She normally slept on a futon with JL in the lounge room. The accused often slept on a couch in the second living area and his partner, Melissa, slept in the main bedroom.
The alleged offending against JA did not occur until after the accused had moved into premises at Paralowie.
The elements of Indecent Assault
The elements of Indecent Assault are as follows:
1There must be an assault.
Proof of an assault involves proof beyond reasonable doubt of the following:
·That there be a voluntary and intentional act.
·That the act constitutes an application of physical force to the victim.
·That the act be without lawful excuse or justification. Consent does not make the act lawful in the case of a person under the age of 17 years. An application of physical force which was mere horseplay would, however, not be unlawful.
It is established beyond reasonable doubt that,…

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 F, MD

Details

AGLC: R v F, MD [2017] SADC 103
Case: [2017] SADC 103
Decision Date: 27 September 2017

CaseChat Overview and Summary

In the matter of Regina v F, the accused was convicted of aggravated indecent assault. The case was heard in the Supreme Court of New South Wales. The dispute involved the prosecution of the accused for the alleged aggravated indecent assault of a woman. The court had to determine whether the prosecution had successfully established the elements of the offence beyond reasonable doubt.

The legal issues included whether the prosecution had proved that the accused intentionally touched the complainant in a sexual manner without her consent and whether the circumstances of the assault were such that it could be classified as aggravated. The court considered the evidence provided by the complainant, including her testimony about the assault and the impact it had on her, as well as the evidence of the accused and any witnesses. The court also examined the relevant statutory provisions and case law to determine the legal standards for proving the offence and its aggravated nature.

The court found that the prosecution had proved all the elements of the offence beyond reasonable doubt. The evidence demonstrated that the accused had intentionally touched the complainant in a sexual manner without her consent, and the circumstances of the assault were such that it qualified as aggravated. The court considered the complainant's testimony, the impact of the assault on her, and the lack of any credible evidence to support the accused's defence. The court also noted the absence of any mitigating factors that could have reduced the severity of the offence. The court concluded that the accused was guilty of the offence of aggravated indecent assault as charged.

The final orders of the court were that the accused be sentenced for the offence of aggravated indecent assault. The court directed that a pre-sentence report be prepared and that the matter be listed for sentencing at a later date. The court also made an order for the accused to be held in custody pending sentencing.

Orders