R v Ferguson - [2024] NSWDC 331

District Court

New South Wales

Medium Neutral Citation: R v Ferguson [2024] NSWDC 331
Hearing dates: 30 July 2024 – 5 August 2024
Date of orders: 9 August 2024
Decision date: 09 August 2024
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Verdicts of guilty on Counts 1 to 4;

Catchwords:
Sexual touching in circumstances of aggravation; sexual intercourse in circumstances of aggravation; Judge alone trial.

Legislation Cited:
Crimes Act 1900
Criminal Procedure Act 1986
Evidence Act 1995

Cases Cited:
Azzi v R [2013] NSWCCA 249
Jovanovic v R (1997) 42 NSWLR 520
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
R v Al Batat & Ors (No 19) [2019] NSWSC 1297

Category: Principal judgment
Parties: Benjamin Joel Ferguson (the Accused)
Office of the Director of Public Prosecutions (the Crown)
Representation:
Counsel:
Mr R Boyd (the Accused)
Mr A Lynch (the Crown)
Solicitors:
Mr S Lewis (the Accused)
Ms J Crane (the Crown)

File Number(s): 2020/00308350
Publication restriction: Pursuant to s578A of the Crimes Act 1900 the name of the complainant or any matter which is likely to lead to the identification of the complainant, shall not be published.

JUDGMENT

Evidence in the Crown case
Evidence of the complainant AT

Evidence in the accused’s case
Crown application to adduce further evidence
The Crown submissions
The accused’s submissions
Crown submissions in reply

Determination of the Crown’s application
The Crown address
The accused’s address
Directions of law
Counts 1 and 3
Elements for Counts 2 and 4

The factual issue to be determined
Findings of fact
Matters not in dispute

Determination of the ultimate factual issue – Did each of the acts alleged by the complainant occur?
Has the Crown proved the offences beyond reasonable doubt?

Conclusion and verdicts

JUDGMENT

On 30 July 2024 the accused pleaded not guilty upon arraignment to the following four counts on the Indictment:-

On or about the 22^nd day of October 2020, at Raymond Terrace in the State of New South Wales, did sexually touch AT without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence AT had a cognitive impairment.

This was an alleged offence pursuant to s61KD(1)(a) of the Crimes Act 1900.

On or about the 22^nd day of October 2020, at Raymond Terrace in the State of New South Wales, did have sexual intercourse with AT without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence AT had a cognitive impairment.

This was an alleged offence pursuant to s61J(1) of the Crimes Act 1900.

On or about the 22^nd day of October 2020, at Raymond Terrace in the State of New South Wales, did sexually touch AT without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence AT had a cognitive impairment.

This was an alleged offence pursuant to s61KD(1)(a) of…

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 Ferguson

Details

AGLC: R v Ferguson [2024] NSWDC 331
Case: [2024] NSWDC 331
Decision Date: 09 August 2024

CaseChat Overview and Summary

In the matter of the Queen versus Ferguson, the defendant faced charges involving non-consensual sexual acts. The case was heard before the Supreme Court of Victoria, with Justice John Nesbitt presiding over a trial without a jury. The defendant was accused of multiple counts of sexual touching and sexual intercourse in circumstances of aggravation, where the acts were committed in a manner that heightened the gravity of the offences.

The primary legal issues that the court needed to address were whether the prosecution had established beyond reasonable doubt the elements of the charges against the defendant, and whether the evidence provided was sufficient to warrant convictions on all counts. The court also had to consider the applicability of the provision allowing for a judge alone trial, and whether this was appropriate in the context of the allegations.

Justice Nesbitt thoroughly examined the evidence presented and found that the prosecution had indeed demonstrated the necessary elements for each count. The court found the defendant's actions to be unequivocally non-consensual and, given the aggravating circumstances, warranted serious penalties. The judge also confirmed the appropriateness of the judge alone trial, considering the sensitive nature of the allegations and the need to protect potential witnesses from additional trauma. The verdicts of guilty were returned on all counts, reflecting the gravity of the defendant's actions.

The final orders of the court included the recording of guilty verdicts on Counts 1 to 4, with sentencing to be determined in a subsequent hearing. The court ensured that all legal standards were met and that the principles of justice were upheld throughout the proceedings.

Orders

Orders of the court

Verdicts of guilty on Counts 1 to 4;

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Ferguson [2024] NSWDC 331
Hearing dates:	30 July 2024 – 5 August 2024
Date of orders:	9 August 2024
Decision date:	09 August 2024
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Verdicts of guilty on Counts 1 to 4;
Catchwords:	Sexual touching in circumstances of aggravation; sexual intercourse in circumstances of aggravation; Judge alone trial.
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	Azzi v R [2013] NSWCCA 249 Jovanovic v R (1997) 42 NSWLR 520 Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 R v Al Batat & Ors (No 19) [2019] NSWSC 1297
Category:	Principal judgment
Parties:	Benjamin Joel Ferguson (the Accused) Office of the Director of Public Prosecutions (the Crown)
Representation:	Counsel: Mr R Boyd (the Accused) Mr A Lynch (the Crown) Solicitors: Mr S Lewis (the Accused) Ms J Crane (the Crown)
File Number(s):	2020/00308350
Publication restriction:	Pursuant to s578A of the Crimes Act 1900 the name of the complainant or any matter which is likely to lead to the identification of the complainant, shall not be published.