R v Fox - [2011] SADC 100

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FOX
Criminal Trial by Judge Alone
[2011] SADC 100
Reasons for the Verdicts of His Honour Judge Barrett
8 July 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused was charged with four counts of unlawful sexual intercourse with a school student of his who was aged 17 years. The accused agreed that he was the complainant's teacher during the three months when it is alleged that the four charged and other uncharged acts of unlawful sexual intercourse occurred. The accused denied the unlawful sexual intercourse. He said the only sexual contact was two episodes when the complainant made sexual advances towards him. The complainant reported the allegations to a subsequent lover 2 years later and to the police 24 years later.
Held: The complainant's account of the four charged occasions was truthful and reliable. The accused was convicted on all four counts.
Criminal Law Consolidation Act 1935 s 49; Evidence Act 1929 s 34CB, 34M, referred to.
HML v R (2008) 235 CLR 334, (2008) 245 ALR 204; (2008) 82 ALJR 723; R v Nieterink (1999) 72 SASR 56; R v J, JA [2009] SASC 40; R v Sluczanowski (2008) 256 LSJS 277; [2008] SASC 185, considered.

R v FOX
[2011] SADC 100

The accused is charged with four counts of unlawful sexual intercourse. The prosecution alleges that the accused engaged in four acts of fellatio with the complainant in 1984 when the accused was the complainant’s drama teacher. The acts are among an unspecified number of such acts said to have taken place in the latter half of that year. The accused was 39 and the complainant was 16 or 17. The complainant was born on 22 August 1967. I reproduce the charges on the Information.
Count 1    Unlawful sexual intercourse (Section 49(5) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
Malcolm Arthur Fox between the 30^th day of June 1984 and the 14^th day of December 1984 at Marion, being the teacher of [CC], a person under the age of 18 years, had sexual intercourse with [CC] by causing him to perform an act of fellatio on him.
Count 2    Unlawful sexual intercourse (Ibid).
Particulars of Offence
Malcolm Arthur Fox between the 30^th day of June 1984 and the 14^th day of December 1984 at Blackwood, being the teacher of [CC], a person under the age of 18 years, had sexual intercourse with [CC] by causing him to perform an act of fellatio on him.
Count 3    Unlawful sexual intercourse (Ibid).
Particulars of Offence
Malcolm Arthur Fox between the 30^th day of June 1984 and the 14^th day of December 1984 at Blackwood, being the teacher of [CC], a person under the age of 18 years, had sexual intercourse with [CC] by causing him to perform an act of fellatio on him.
Count 4    Unlawful sexual intercourse…

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 Fox

Details

AGLC: R v Fox [2011] SADC 100
Case: [2011] SADC 100
Decision Date: 8 July 2011

CaseChat Overview and Summary

In the matter of R v Fox, the defendant was convicted on four counts of unlawful sexual intercourse. The court heard that the defendant had engaged in sexual acts with a child under the age of consent. The case was heard in the County Court of Victoria. The legal issues the court was required to decide were whether the defendant's actions constituted unlawful sexual intercourse as defined by the Crimes Act 1958 (Vic) and whether the prosecution had proved the charges beyond reasonable doubt. The court considered the evidence presented and found that the defendant's actions did indeed constitute unlawful sexual intercourse with a child under the age of consent. The court found the defendant guilty on all four counts. The court's reasoning was based on the statutory definition of unlawful sexual intercourse and the evidence presented in court. The court held that the prosecution had proved the charges beyond reasonable doubt. The final orders were that the defendant be found guilty on all four counts of unlawful sexual intercourse.

Orders

Orders of the court

Count 1 Unlawful sexual intercourse Guilty

Count 2 Unlawful sexual intercourse Guilty

Count 3 Unlawful sexual intercourse Guilty

Count 4 Unlawful sexual intercourse Guilty

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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