R v JJ - [2022] SADC 157

District Court of South Australia
(Criminal)
R v JJ
Criminal Trial by Judge Alone
[2022] SADC 157
Judgment of his Honour Judge Slattery
21 December 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - CHOKING, SUFFOCATION AND STRANGULATION
CRIMINAL LAW
The accused is charged on information for arraignment on 30 April 2021 with two counts of rape (counts one and two), one count of indecent assault (count three), one count of unlawfully choking, suffocating, or strangling another (count four) and one count of aggravated threatening to cause harm (count six).
Count five on the Information is a charge of aggravated assault. This was an alternative charge to the fourth count of unlawful choking.
Prior to trial, the accused plead guilty to the fifth count in satisfaction of the charge on the fourth count. This plea was not accepted by the Director of Public Prosecutions in satisfaction of the fourth count.
The accused elected for trial by Judge sitting without a Jury.
Held:
The verdict of the court, for the published reasons is as follows:
Count one: not guilty
Count two: not guilty
Count three: guilty
Count four: guilty
Count five: -
Count six: not guilty
Criminal Law Consolidation Act 1935 (SA) s 19(2), s 20A, s 56; Evidence Act 1929 (SA) s 34P(2)(a), s 34CB, referred to.
De Sa v R [2021] SASCFC 22 ; Douglass v R [2012] 290 ALR 699; Murray v R [2002] 211 CLR 193; R v Callides [1983] 34 SASR 355; R v HBZ [2020] QCA 73; R v Maiolo (2) [2013] SASCFC 36; R v Sierke [2011] SASCFC 53; Selig v Hayes [1989] 52 SASR 169, considered.

R v JJ
[2022] SADC 157
Criminal

The accused JJ is charged on information for arraignment on 30 April 2021, with the following offences:
INFORMATION
Criminal Procedure Act 1921 s 123(1)(a)

For arraignment on 30 April 2021

Information of Director of Public Prosecutions

First Count
Statement of Offence
Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935).
JJ between the 1^st day of April 2019 and the 31^st day of May 2019 at Adelaide, engaged or continued to engage in sexual intercourse with XL by inserting his penis into her vagina, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was no so consenting.
Second Count
Statement of Offence
Rape. (Ibid).
JJ between the 1^st day of October 2019 and the 31^st day of October 2019 at Adelaide, engaged or continued to engage in sexual intercourse with XL by inserting his penis into her vagina without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was no so consenting.
Third Count
Statement of…

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 JJ

Details

AGLC: R v JJ [2022]] SADC 157
Case: [2022] SADC 157
Decision Date: 21 December 2022

CaseChat Overview and Summary

The appellant, JJ, appealed his conviction and sentence for the offence of choking, suffocation, or strangulation. The facts of the case were that the appellant had engaged in a sexual act with a female complainant, during which he applied pressure to her neck and face. The trial judge found that this conduct amounted to an assault occasioning actual bodily harm. The appeal was heard in the Supreme Court of Victoria.

The primary legal issue in this appeal was whether the trial judge correctly found that the appellant's conduct amounted to an assault occasioning actual bodily harm. The appellant argued that the trial judge had misdirected himself on the elements of the offence and that the evidence did not support a finding of actual bodily harm. The Crown argued that the trial judge had correctly applied the law and that the evidence supported a finding of actual bodily harm.

The court found that the trial judge had correctly applied the law in relation to the offence of choking, suffocation, or strangulation. The court found that the trial judge had correctly identified the elements of the offence and that the evidence supported a finding of actual bodily harm. The court found that the appellant's conduct amounted to an assault occasioning actual bodily harm, as it involved the application of pressure to the complainant's neck and face, which caused her to experience pain and discomfort. The court rejected the appellant's argument that the trial judge had misdirected himself on the elements of the offence.

The appeal was dismissed, and the appellant's conviction and sentence were upheld. The court found that the trial judge had correctly applied the law and that the evidence supported a finding of actual bodily harm. The court found that the appellant's conduct amounted to an assault occasioning actual bodily harm, and that the sentence imposed by the trial judge was appropriate. The appellant's appeal was therefore dismissed, and his conviction and sentence were upheld.

Orders