R v Isaacs (a pseudonym)

[2021] NSWDC 401

District Court

New South Wales

Medium Neutral Citation:

R v Isaacs (a pseudonym) [2021] NSWDC 401

Hearing dates:

26 July 2021 to 30 July 2021

Date of orders:

13 August 2021

Decision date:

13 August 2021

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

VERDICTS
Count 1        Not Guilty     

Count 2        Not Guilty

Count 3        Not Guilty

Catchwords:

CRIME — Child sex offences — Sexual intercourse with child <10

CRIME — Child sex offences — Attempted Sexual intercourse with child <10

CRIME — Child Sex offences — Indecent assault child <10

Legislation Cited:

Criminal Procedure Act 1986 (NSW)

Crimes Act 1900 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

Fleming v R (1998) 197 CLR 250

De Silva v The Queen [2019] HCA 48

R v Barker [2010] EWCA Crim 4

CMG v R [2011] VSCA 416

The Queen v GW [2016] HCA 6

Category:

Principal judgment

Parties:

Crown (Regina)
Isaacs (Accused)

Representation:

Counsel:
Morters SC Crown Prosecutor NSW DPP
Cusack Counsel for the Accused

Solicitors:
Magni Solicitor for NSW DPP
Vakauta & Affleck Solicitors for the Accused

File Number(s):

2019/00094395

Publication restriction:

Unrestricted.

Judgment

Introduction

1. This trial proceeded by way of a judge alone trial pursuant to section 132(2) of the Criminal Procedure Act and commenced on 26 July 2021 and submissions concluded on 2 August 2021.
2. The accused is charged with 3 offences.  Each of them is alleged to have occurred in the period 1 November 2017 and 31 May 2018 at Ballina.  The complainant in each of the charges is the daughter of the accused.  The complainant was born on 10 October 2013, so that she was 4 years old at the time of the alleged offending.  The three charges together with their particulars are:

2.1. That the accused had sexual intercourse with the complainant, a person then under 10, in contravention of section 66A(1) of the Crimes Act. The conduct alleged to make out this charge is the accused licking the complainant’s vagina.

2.2. That the accused did assault the complainant at a time she was under 16, and at the time of such assault committed an act of indecency upon her, in breach of section 61M(2) of the Crimes Act. The conduct alleged to make out this charge is the accused tickling the complainant in the genital region.

2.3.    That the accused attempted to have sexual intercourse with the complainant, then under the age of 10.  The conduct alleged to make out this charge is the accused attempting to place his penis in the mouth of the complainant.

General Directions

3. In compliance with the decision of the High Court in Fleming-v-R (1998) 197 CLR 250 I remind myself of the following principles of law and set out the findings of fact on which I have relied.
4. I direct myself that the onus of proof is “beyond reasonable doubt” and that the Crown bears the burden of proof.
5. The Court has heard the submissions of both the Crown Prosecutor and of Counsel for the accused.  The Court will…