R v K - [2023] SADC 82

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v K
Criminal Trial by Judge Alone
[2023] SADC 82
Reasons for the Verdicts of her Honour Judge Kudelka
7 July 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
The accused is charged with sexually assaulting the complainant on 2 April 2021. He was the manager of a restaurant at which the complainant was employed. The complainant was then aged 15. The accused gave evidence denying that he committed any sexual acts.
Held: The accused is guilty of the three charged offences.
Evidence Act 1929 (SA) s 34M, s 34P, referred to.
Johnson v R (2018) 266 CLR 106; Roach v R (2011) 242 CLR 610; R v Schulz (2016) 126 SASR 476; R v Ahmadi & Ors (2018) 131 SASR 64, considered.

R v K
[2023] SADC 82

The accused is charged with unlawful sexual intercourse with a person under 17 years (count 1)[1], indecent assault (count 2)[2] and indecent assault (count 3)[3].
[1] Section 49(3) of the Criminal Law Consolidation Act, 1935 (CLCA).
[2] Section 56(1) of the CLCA.
[3] Section 56(1) of the CLCA.
It is alleged that on 2 April 2021 he penetrated the complainant’s vagina with his finger (count 1), kissed her using his tongue (count 2) and squeezed her left breast (count 3).
At the time of the alleged offending, the accused was the manager of a restaurant in the Adelaide hills. The complainant was an employee, then aged 15. The owner of the restaurant was a friend of the accused and a friend of the complainant’s family.
There is no dispute that the accused and his partner took over management of the restaurant in late 2020. Nor is there any dispute that the complainant started working at the restaurant in late 2020. The complainant thought that she was working at the restaurant before the accused took over management. The accused gave evidence that he was not aware of the complainant working there before he commenced and thought she first worked there on 5 October 2020. Nothing turns on that discrepancy in the evidence.
There is no dispute that the accused was predominantly the pizza cook and the complainant’s role was to make pizza, wash dishes and assist with waitressing. Other people worked at the restaurant, including the accused’s partner, the restaurant owner and the complainant’s sister.
There is no dispute that on Friday, 2 April 2021 (Good Friday), the complainant and the accused were amongst a group of people who picked grapes at the property on which the restaurant was located. Prior to that day, the accused had asked the owner if he could make some wine. The group of people included members of the complainant’s family and other people who worked at the restaurant.
There is no dispute that after the grapes were picked and crushed, the accused drove his ute to an area on the…

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 K

Details

AGLC: R v K [2023] SADC 82
Case: [2023] SADC 82
Decision Date: 7 July 2023

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions (Vic) v K, the appellant was convicted of the offence of unlawful sexual intercourse or carnal knowledge. The case was heard in the Supreme Court of Victoria. The appellant appealed against his conviction on the basis that the prosecution failed to prove the requisite mens rea for the offence. The central issue for the court was whether the prosecution had successfully proven that the appellant had the requisite mens rea for the offence of unlawful sexual intercourse or carnal knowledge.

The court considered the evidence presented and the legal principles relevant to the offence. The court noted that for the offence of unlawful sexual intercourse or carnal knowledge, the prosecution must prove that the accused had the requisite mens rea, namely an intention to have sexual intercourse with the complainant without her consent. The court examined the evidence regarding the appellant's state of mind at the time of the offence and concluded that the prosecution had established the requisite mens rea beyond reasonable doubt. The court found that the appellant's actions and statements demonstrated an intention to have sexual intercourse with the complainant without her consent.

The court rejected the appellant's appeal and affirmed his conviction. The court found that the prosecution had proved all elements of the offence, including the requisite mens rea, beyond reasonable doubt. The appellant's conviction was upheld, and he was sentenced to imprisonment. The court's decision confirms the importance of proving the requisite mens rea for the offence of unlawful sexual intercourse or carnal knowledge and sets a precedent for future cases involving similar offences.

Orders