R v Jesse Robert Thurlow

[2020] NSWDC 850

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Jesse Robert Thurlow [2020] NSWDC 850

Date of orders:

18 September 2020

Decision date:

18 September 2020

Jurisdiction:

Criminal

Before:

H. L. Syme DCJ

Decision:

Count 1 – Not Guilty

Count 2 – Not Guilty

Count 4 – Guilty

Catchwords:

Judge Alone Trial - Reasons on Verdict

Legislation Cited:

s 61HA(7) Crimes Act 1900

s 293 Criminal Procedure Act

Cases Cited:

R v XHR [2012] NSWCCA 247

Lazarus v R [2016] NSWCCA 52

Fleming v The Queen [1998] HCA 68

Category:

Procedural rulings

Parties:

Regina (ODPP)
Jesse Robert Thurlow

Representation:

Counsel:
Ms S. Sloane (ODPP)
Mr A. Goldsworthy (Thurlow)

Solicitor:
Ms L. Crase
Mr S. Tully

File Number(s):

2017/00134143

Publication restriction:

Statutory prohibition on publication in relation to identity of the complainant under s578A of the Crimes Act 1900 (NSW)

Judgment

CHARGES

1. On the 18th August 2020 the Accused was arraigned on an indictment charging:

1. Counts 1 and 2 - That on the 15th April 2015 he had sexual intercourse with the Complainant, in circumstances of aggravation, in that he was in company with Stefan Arabadzhiyski. He pleaded not guilty to these charges.

2. Count 3 - Between the 20 and 26th April 2017 he engaged in a course of conduct, procuring Brenton Pearce to provide false information with respect to the sexual assault allegations with intent to pervert the course of justice. He pleaded guilty to this charge.

3. Count 4 - Between the 20 and 28th April 2017 he engaged in a course of conduct, procuring Kate Thurlow to provide false information with respect to the sexual assault allegations with intent to pervert the course of justice. He pleaded not guilty to this charge.

2. The allegations relate to a time when the Accused was residing in a share house in Kensington where the Complainant visited on the evening in question. The Accused and the Complainant had not known each other prior that evening. The second Accused, Mr Arabadzhiyski has been charged with similar offences, but the indictment has been separated and the trial before this court only concerned the guilt or otherwise of the Accused, Thurlow. Much of the evidence in the current proceedings will have to be given again in the subsequent trial.

PROOF AND ELEMENTS

3. In relation to counts 1 and 2 the Crown must prove beyond reasonable doubt each of the following elements before a finding of guilt can be made:

1. that, at the time and place alleged, the Accused had sexual intercourse with the Complainant;

2. without the Complainant’s consent;

3. At the time the sexual intercourse occurred, he was in company with Arababzhiyski; and

4. At the time he knew or was reckless to the lack of consent.

4. There is no dispute that sexual intercourse occurred. The act of sexual intercourse relied on by the Crown is:

1. Count 1: Placing the Complainant’s mouth onto the penis of the Co Accused.

2. Count 2: Digital penetration of the complaints vagina.

5. The Accused does not have to prove that…