R v L Os - [2021] SADC 125

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v L OS
Criminal Trial by Judge Alone
[2021] SADC 125
Reasons for the Verdict of her Honour Judge Deuter
25 November 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - CONSENT - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY
The accused is charged with one count of Causing Harm with Intent to Cause Harm; one count of Rape; and one count of Attempted Rape.
The complainant and the accused had known each other for several years whilst living in Darwin, when the accused was in a relationship with the complainant's daughter. The accused lived with the complainant and her daughters in a home where all residents had a significant methylamphetamine habit, using the drug on at least a daily basis.
The complainant moved to Adelaide and the accused came to stay with her. The complainant's daughter was to come to Adelaide soon after. During the evening of the day the accused arrived in Adelaide, there was a sexual encounter between the accused and the complainant, whereby it was alleged that he placed her head in a head-lock causing her to black out, and then attempted sexual intercourse, before having sexual intercourse with her.
There was no dispute that the parties engaged in sexual activity, and that the accused had sexual intercourse with the complainant. The issues are whether the accused placed the complainant in a head-lock causing her harm; unsuccessfully attempted sexual intercourse with the complainant; and whether the sexual intercourse that took place was consensual. The accused pleaded not guilty and gave evidence on oath denying all of the offending.
The case is one of 'oath against oath', to determine whether the prosecution has proved that all of the alleged acts occurred, and that the accused knew or was recklessly indifferent as to the lack of consent by the complainant to sexual intercourse occurring. The Prosecution case based upon the acceptance of the truth and reliability of the evidence of the complainant.
Consideration of the principles in s 34L(I)(b) of the Evidence Act 1929 (SA) regarding the accused's counsel being able to question the complainant as to her previous sexual activities.
Held: The offences have not been proved beyond reasonable doubt.
Verdict:
Count 1 - Not Guilty
Count 2 - Not Guilty
Count 3 - Not Guilty
Criminal Law Consolidation Act 1935 (SA) ss 24(1), 46(2), 46(3)(a)(i), 47, 48(1), 270A; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 13A, 34L(1)(b), 34L(2), 34M, 34M(4), 34M(6), referred to.
He Kow Teh (1985) 157 CLRA 523; R v Brown (1975) 10 SASR 139; R v Nieterink (1999) 76 SASR 56; Douglass v The Queen (2021) 86 ALJR 1086; Driscoll v The Queen (1977) 137 CLR 517; Kilby v The Queen (1973) 129 CLR 460; Jones…

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 L Os

Details

AGLC: R v L Os [2021] SADC 125
Case: [2021] SADC 125
Decision Date: 25 November 2021

CaseChat Overview and Summary

The defendant, L Os, was on trial before a court of criminal jurisdiction in Australia for multiple offences, including acts intended to cause or causing danger to life or bodily harm or serious injury, and offences against the person, specifically sexual offences. The prosecution alleged that the defendant had committed acts of rape and sexual assault against a complainant. The central issue before the court was whether the acts alleged by the prosecution were proven beyond reasonable doubt, with particular focus on the element of consent in the context of the sexual offences.

The court was required to determine whether the prosecution had successfully demonstrated that the defendant's actions constituted the offences as alleged. This involved a thorough examination of the evidence presented, particularly the credibility of the complainant and the defendant, and the interpretation of the circumstances surrounding the alleged offences. The court assessed the reliability of the testimony, the physical evidence, and the consistency of the accounts given by both parties. It was essential to establish whether the defendant's actions were indeed without consent and whether they caused danger to life or bodily harm.

After careful consideration of the evidence and arguments presented, the court found that the prosecution had not proven the offences beyond reasonable doubt. The court expressed doubt about the reliability and credibility of the complainant's testimony, as well as the lack of corroborative evidence to support the allegations. Consequently, the court acquitted the defendant on all counts, delivering a verdict of not guilty on each charge. This decision reflects the high standard of proof required in criminal cases in Australia, where the presumption of innocence must be upheld unless the evidence is overwhelming.

The final orders of the court were that the defendant was acquitted on all charges. The court formally recorded not guilty verdicts on Count 1, Count 2, and Count 3, effectively discharging the defendant from all the criminal charges brought against them.

Orders

Orders of the court

Held: The offences have not been proved beyond reasonable doubt.

Verdict:

Count 1 - Not Guilty

Count 2 - Not Guilty

Count 3 - 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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