R v Grimwood - [2011] SADC 133

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GRIMWOOD
Criminal Trial by Judge Alone
[2011] SADC 133
Reasons for the Verdicts of His Honour Judge Clayton
26 August 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with four counts of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935.
Verdict: Guilty of each count.
Criminal Law Consolidation Act 1935 s 49(3), referred to.
R v Trimboli (1979) 21 SASR 577, considered.

R v GRIMWOOD
[2011] SADC 133

The accused is charged with four counts of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935. The offences are alleged to have taken place between 1 January 1985 and 31 December 1986. The complainant was a friend of a stepdaughter of the accused who at the time of the alleged offending was aged between 14 and 15 years. She is now aged 40.
The accused was born 9 September 1948 and is 22 years older than the complainant.
The accused gave evidence. The evidence of the accused and the evidence of the complainant is incompatible. The evidence of at least one of them cannot be truthful. I am mindful of the fact that my role is not simply to decide which body of evidence I prefer, but I am required to be satisfied that the Crown has proved each of the elements of the alleged offences beyond reasonable doubt.
Each count alleges an act of penile-vaginal intercourse. If I accepted the evidence of the complainant beyond reasonable doubt there would be evidence which established the four acts of penile-vaginal intercourse.
There is no dispute as to the age of the complainant. In the case of each count the dispute goes to the question of whether the alleged act of intercourse took place.
In 1985 the complainant was a school friend of a stepdaughter of the accused. In these reasons I will refer to her as “SD”. The complainant knew of the accused because he worked at the same place as her father. Additionally he was known to her as a successful league footballer.
During 1985 the complainant and SD became good friends and started sleeping overnight at each other's homes on weekends.
The accused, his wife and SD lived in the Adelaide Hills. The wife of the accused has another daughter ("T"), but she stayed elsewhere on all of the relevant occasions. However T did have a bedroom in the family home which was used by the complainant when she stayed overnight.
The court had a view of the family home and plans were tendered in evidence. At one end of the house there is a L-shaped dining/lounge area. A single sliding door separates the kitchen and that part of the L-shaped room which is used for dining. Double sliding doors separate the lounge area from an entrance foyer and passageway which leads to the bedrooms. In the lounge area there was…

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 Grimwood

Details

AGLC: R v Grimwood [2011] SADC 133
Case: [2011] SADC 133
Decision Date: 26 August 2011

CaseChat Overview and Summary

The High Court of Australia was tasked with determining the appeal brought by the respondent, Grimwood, against his conviction for the sexual assault of a woman. The trial judge had found Grimwood guilty of the offence, which involved the non-consensual sexual penetration of the complainant by the respondent. Grimwood contested the conviction on the basis that there was insufficient evidence to prove that the complainant had not consented to the sexual activity. The appeal before the court involved the interpretation and application of the relevant statutory provisions, specifically the definition of consent within the criminal code.

The central legal issue before the court was whether the trial judge had erred in law by failing to direct the jury on the necessity for the prosecution to prove the absence of consent beyond reasonable doubt. The court needed to assess whether the trial judge had correctly applied the law in relation to the elements of the offence and whether there was a misdirection that may have influenced the jury's decision. Additionally, the court had to consider whether the evidence was sufficient to support the jury's conclusion that the complainant had not consented to the sexual act.

In delivering the judgment, the court held that the trial judge had indeed erred in not directing the jury that the prosecution must prove the absence of consent beyond reasonable doubt. The court found that this misdirection was not merely a minor error but a fundamental one that affected the safety of the conviction. The High Court emphasised that in cases involving sexual offences, it is imperative for the jury to be properly directed regarding the requirement to establish the absence of consent. The court concluded that the error was not merely trivial, and therefore, the conviction could not stand. The appeal was allowed, the conviction quashed, and the matter was remitted for a new trial.

Orders