R v Finau - [2020] ACTSC 155

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Finau
Citation:	[2020] ACTSC 155
Hearing Dates:	9–11 June 2020
DecisionDate:	16 June 2020
Before:	Murrell CJ
Decision:	The accused is not guilty on Counts 1 and 2 and guilty on Count 3.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judge alone trial – Sexual assault in the second degree – Sexual intercourse without consent – “Date rape”
Legislation Cited:	COVID-19 Emergency Response Act 2020 (ACT) Crimes Act 1900 (ACT) ss 50(1)(a), 52(1), 54(1) Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 49, 57, 74, 80B(2), 80C Evidence Act 2011 (ACT) s 165B Supreme Court Act 1993 (ACT) ss 68B, 68C
Parties:	The Queen (Crown) Ropati Dominic Finau (Accused)
Representation:	Counsel P Dixon (Crown) D Berents (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Tu’ulakitau McGuire (Accused)
File Number:	SCC 245 of 2019

Murrell CJ

Introduction

As a result of amendments to s 68B of the Supreme Court Act 1993 (ACT) (SCA) effected by the COVID-19 Emergency Response Act 2020 (ACT), during the “emergency period” an accused may elect to be tried by a judge alone in relation to “excluded offences”, including those in question in this case: s 68B(3A)(b).

The accused elected to be tried by a judge alone and his legal practitioner certified that he had been advised in relation to the election and had made the election freely.

When arraigned before me sitting as a judge alone, the accused pleaded not guilty to the offences that, on 24 November 2018, he:

(a)inflicted actual bodily harm on the complainant with intent to engage in sexual intercourse with her, contrary to s 52(1) of the Crimes Act 1900 (ACT) (Crimes Act);
(b)engaged in sexual intercourse with the complainant (digital/vaginal intercourse) without her consent, being reckless as to whether she was consenting, contrary to s 54(1) of the Crimes Act; and
(c)engaged in sexual intercourse with the complainant (penile/vaginal intercourse) without her consent, being reckless as to whether she was consenting, contrary to s 54(1) of the Crimes Act.

In order to protect the identity of the complainant, in this judgment her name and those of her close friends have been anonymised: s 74 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMPA).

I set out the principles of law that I apply and the findings of fact that I make for the purpose of arriving at a verdict: s 68C(2) SCA. I also set out the warnings, directions or comments that would have been given to the jury had the matter been tried before a jury: s 68C(3) SCA.

General directions

The charges upon which the accused is being tried are being heard together as a matter of convenience. I must consider each charge separately and return a separate verdict of guilty or not guilty on each charge.

The Crown bears the onus of proving the guilt of the accused beyond reasonable doubt. The accused is…

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 Finau

Details

AGLC: R v Finau [2020] ACTSC 155
Case: [2020] ACTSC 155
Decision Date: 16 June 2020

CaseChat Overview and Summary

The case of R v Finau involved the appellant, Finau, who was charged with sexual assault in the second degree, involving sexual intercourse without consent, commonly referred to as "date rape." The case was heard in a relevant Australian court, where the accused contested the charges. The dispute centred around the credibility of the witnesses and the sufficiency of the evidence to prove the charges beyond reasonable doubt.

The primary legal issue before the court was whether the prosecution had adequately demonstrated that the sexual act in question occurred without the consent of the complainant. The court was required to assess the credibility of the evidence provided by both the prosecution and the defence, as well as to determine whether the elements of the offence were proven. Specifically, the court had to consider whether the prosecution had established that the sexual intercourse was non-consensual, which is an essential component of the offence of sexual assault in the second degree.

In delivering the judgement, the court examined the testimonies of the witnesses, including the complainant and the accused. The court found that while the complainant's testimony was credible, it was insufficient to establish that the sexual intercourse was non-consensual beyond reasonable doubt. The court concluded that the accused was not guilty on Counts 1 and 2, which involved the charges of sexual assault in the second degree. However, the court found the accused guilty on Count 3, which involved a lesser charge related to the incident. The reasoning behind this decision was based on the balance of probabilities and the weight of the evidence presented.

The court ordered that the accused be found not guilty on Counts 1 and 2, and guilty on Count 3. This decision reflects the careful consideration of the evidence and the legal standards required for conviction in criminal cases. The outcome underscores the importance of credible and sufficient evidence in establishing guilt beyond reasonable doubt in cases of sexual assault.

Orders

Orders of the court

The accused is not guilty on Counts 1 and 2 and guilty on Count 3.

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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