R v KANDEL - [2024] SADC 57

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KANDEL
Criminal Trial by Judge Alone
[2024] SADC 57
Reasons for the Verdicts of her Honour Judge Kudelka
21 May 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - GENERALLY
The accused is charged with sexually assaulting two intellectually disabled female residents of a residential care facility, Ms AB and Ms CD. He was employed as a carer. It is alleged that he committed the offences on the same day at the facility. The offence is not proved beyond reasonable doubt in relation to Ms AB. The offences are proved beyond reasonable doubt in relation to Ms CD.
Verdicts: Not guilty (count 1), Guilty (counts 2 and 4).
Evidence Act 1929 (SA), referred to.
R v Sparks [2017] SASCFC 171; R v Partington (2018) 132 SASR 11; R v Maiolo (No 3) [2014] SASCFC 89; R v Marshall [2023] SASCA 105; Slape v The Queen [2022] SASCA 91; Sexton v The Queen (2022) 141 SASR 325; Bromley v The Queen (1986) 161 CLR 315; Dennerley v R [2022] SASCA 92; R v Adamson [2018] SASCFC 114; R v Wildy (2011) 111 SASR 189, applied.

R v KANDEL
[2024] SADC 57

The accused is charged with committing sexual offences against two women with intellectual disabilities. The complainant, AB, was then 59 years old, and the complainant, CD, was then 35 years old. They both lived in the same residential care facility. The accused was employed as a care worker and rostered to work at the facility on 7 August 2020 because of the regular worker’s absence. It is alleged he committed the offences on that day.
In relation to AB, the accused is charged with:
·aggravated indecent assault (count 1).[1] It is alleged that he indecently assaulted AB by moving her hand towards his penis. The offence is aggravated because it is alleged that he committed the offence knowing that AB was at the time of the offence in a position of particular vulnerability because of cognitive impairment.
[1] Section 56 of the Criminal Law Consolidation Act, 1935.
In relation to CD, the accused is charged with:
·rape (count 2).[2] It is alleged that he raped CD by penetrating her vagina or labia majora with his penis without her consent whilst knowing or being recklessly indifferent to the fact that she was not so consenting.
·unlawful sexual intercourse (count 3), in the alternative to count 2.[3] It is alleged that he had sexual intercourse with CD by penetrating her vagina or labia majora with his penis, knowing that she was by reason of her intellectual disability unable to understand the nature or consequences of sexual intercourse.
·aggravated indecent assault (count 4).[4] It is alleged that he indecently assaulted CD by touching her breasts. The offence is aggravated because it is further alleged that he committed the offence knowing that CD 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 KANDEL

Details

AGLC: R v KANDEL [2024] SADC 57
Case: [2024] SADC 57
Decision Date: 21 May 2024

CaseChat Overview and Summary

The respondent, KANDEL, was convicted of rape. The prosecution case was that KANDEL raped a woman, who was unconscious, after having consensual sex with her earlier that night. The appeal was against conviction only. The legal issues before the court were whether the prosecution proved beyond reasonable doubt that the complainant was unconscious at the time of the alleged rape, and whether KANDEL had the requisite intent to commit the offence of rape. The court considered the evidence, including that from the complainant, who was unconscious at the time of the alleged offence. The court found that the prosecution had failed to prove the requisite unconsciousness on the part of the complainant, and therefore the prosecution had not proved the requisite mens rea for the offence of rape. The court concluded that the evidence was insufficient to prove the offence beyond reasonable doubt, and thus quashed the conviction and ordered an acquittal.

Orders