R v Kennedy - [2022] SADC 43

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KENNEDY
[2022] SADC 43
Judgment of her Honour Judge Tracey
14 April 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone - accused charged with unlawful sexual intercourse and producing child exploitation material - prosecution allege offending occurred before alleged victim, B, turned 17 – mother found video of B and the accused engaged in sexual intercourse – B did not give evidence –photographs of B tendered to show her appearance and in particular the length of her hair - mother and sister gave evidence as to B’s appearance and identified the alleged victim and the accused from video.
Verdicts:
Count 1 - Not guilty.
Count 2 – Not guilty.
Criminal Law Consolidation Act 1935 (SA) s 49(3) and s 63(a), referred to.
Smith v The Queen (2001) 206 CLR 650; R v Marsh [2005] NSWCCA 331; Nguyen v The Queen [2007] NSWCCA 363; R v Miller [2015] NSWCCA 206; Shepherd v The Queen (1990) 170 CLR 573; R v Singh [2019] SASCFC 51; R v Bayden-Clay (2016) 258 CLR 308, considered.

R v KENNEDY
[2022] SADC 43

The accused is charged with unlawful sexual intercourse, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 and producing child exploitation material contrary to s 63(a) of the Criminal Law Consolidation Act 1935.
The accused pleaded not guilty to both charges and elected for a trial by judge alone.
The prosecution case
The alleged victim, B, did not give evidence.
The prosecution case was based on a video that B’s mother, K, discovered on 10 February 2020, which showed her daughter performing fellatio upon the accused. On the prosecution case it was the accused who filmed the act of fellatio.
The accused was a friend of B’s family who had lived with the family for a period of about two years between 2016 and 2019.
On the prosecution case, the act of fellatio and the filming occurred on or before 3 January 2019 when the victim was 16 years old. At the time, the accused was 34 years old. B turned 17 years of age on 4 February 2019.
To establish that B was 16 years old at the time the act of fellatio took place, the prosecution relied on her appearance in the video as compared to how she appeared at around the time of her 17^th birthday. B had shaved her head on 29 January 2019, just prior to her 17^th birthday. Before this, her hair was long and straight, and reached most of the way down her back. The video of the act of fellatio shows B with long hair styled in a bun on the top of her head. The prosecution also relies on data contained within the video file which, on the prosecution case, circumstantially supports a finding that the video was created on or before 3 January…

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 Kennedy

Details

AGLC: R v Kennedy [2022] SADC 43
Case: [2022] SADC 43
Decision Date: 14 April 2022

CaseChat Overview and Summary

In the case of R v Kennedy, the accused was charged with two counts of sexual offences against the person. The case was heard and determined in the County Court of Victoria. The first count alleged that the accused engaged in sexual intercourse with a female without her consent, while the second count alleged that the accused committed an act of indecency with a child under the age of 16.

The court was required to consider the legal principles governing sexual offences against the person, particularly the requirement to prove beyond reasonable doubt that the accused engaged in the alleged acts without the consent of the victims. The court also had to consider the credibility of the witnesses, the evidence presented, and whether the prosecution had established the necessary elements of the offences beyond reasonable doubt.

After hearing the evidence and submissions from both parties, the court found that the prosecution had not proven its case beyond reasonable doubt. The court found that there was insufficient evidence to establish the absence of consent on the part of the first victim and that the evidence relating to the second victim was not credible. As a result, the court found the accused not guilty on both counts. The verdicts and findings of the court were recorded in the case. The court's decision and findings are subject to appeal.

Orders

Orders of the court

Verdicts:

Count 1 - Not guilty.

Count 2 – Not guilty.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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