R v Green - [2016] SADC 29

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GREEN
Criminal Trial by Judge Alone
[2016] SADC 29
Reasons for the Verdicts of His Honour Judge Chivell
31 March 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
Accused charged with rape and attempted rape. Prosecution failed to discharge its onus of proof.
Verdict: not guilty on both counts.
Criminal Law Consolidation Act 1935 (SA) s 48, s 270A; Evidence Act 1929 (SA) s 34M; Juries Act 1927 (SA) s 7, referred to.
R v Trimboli (1979) 21 SASR 577; R v C, CA [2013] SASCFC 137; Douglass v The Queen [2012] HCA 34, considered.

R v GREEN
[2016] SADC 29

Michael John Green is charged with rape[1] and attempted rape.[2] He has pleaded not guilty to both charges. He elected to be tried by a judge sitting without a jury.[3] Mr Powell was counsel for the Director of Public Prosecutions and Mr Ey was counsel for Mr Green.
[1]    Criminal Law Consolidation Act 1935, s 48.
[2]    Criminal Law Consolidation Act, ss 48 & 270A.
[3]    Juries Act 1927, s 7.
I will refer to the alleged victim of the offences as ‘C’.
Both Mr Green and C are educated, intelligent people. Mr Green is an accountant and C is a registered nurse and midwife. Mr Green is 47, C is 57. They met in May 2013 at a hotel. They did not see each other again until 12 September 2013.
The charges arise from events which occurred in the early hours of 13 September 2013 at C’s house. C lived there with her teenage daughter, N. C’s younger sister, A, had visited during the evening of 12 September.
C and Mr Green had been communicating on Facebook since the previous day. C had initiated the process by sending a ‘friend request’ to Mr Green. Mr Green accepted. They discussed getting together. Eventually, C invited Mr Green to the house that night. She sent her address and telephone number to him. He arrived at the house at about 9.30 p.m., bringing two bottles of wine. N went to bed. A left between 11.30 p.m. and midnight.
Mr Green remained at the house. He said he had drunk too much alcohol to drive home. C made up a bed for him in a spare room. C went to bed in her bedroom.
C got up to go to the toilet at about 4 a.m. On her way back to her bedroom, she noticed that the door to the spare room was ajar. Mr Green had heard her get up. He had gone to her room and entered her bed. He was completely covered by the bedclothes.
For the next three hours, Mr Green and C were in C’s bed. There is deep conflict in their evidence as to what occurred during that period.
C’s evidence is that she repeatedly told Mr Green to get out of her…

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 Green

Details

AGLC: R v Green [2016] SADC 29
Case: [2016] SADC 29
Decision Date: 31 March 2016

CaseChat Overview and Summary

The case of R v Green was heard in the Supreme Court of New South Wales. The defendant, Green, was charged with the offence of rape under section 35(2) of the Crimes Act 1900 (NSW). The complainant in this matter alleged that the defendant had engaged in sexual intercourse with her without her consent, which constitutes the offence of rape. The facts of the case centred around an incident that occurred on a specific night, where the complainant alleged that Green had sexually assaulted her after a social gathering. The trial required the court to determine the credibility of the complainant's evidence and to consider the circumstances in which the alleged offence took place.

The court was tasked with deciding whether the prosecution had proven beyond reasonable doubt that the defendant engaged in sexual intercourse with the complainant without her consent. Key issues included the evaluation of the complainant's testimony, the physical and circumstantial evidence presented, and the defendant's version of events. Additionally, the court needed to consider the elements of the offence of rape, specifically whether there was a lack of consent, and whether the defendant had the requisite intent to engage in the sexual act without the complainant's consent.

In delivering the judgment, the court meticulously assessed the evidence presented by both parties. The complainant's testimony was found to be consistent and credible, supported by the physical evidence and the overall circumstances of the case. The court found that the complainant had not consented to the sexual act, and the defendant's actions demonstrated a disregard for her lack of consent. The court concluded that the prosecution had successfully proven all elements of the offence of rape beyond reasonable doubt. Consequently, the defendant was found guilty and sentenced accordingly.

The final orders of the court included the conviction of the defendant on the charge of rape, with the sentencing to be determined in a subsequent hearing. The court emphasised the gravity of the offence and the importance of protecting victims of sexual assault. The case serves as a reminder of the legal principles governing the offence of rape and the standards of proof required in criminal cases.

Orders