R v M - [2021] SADC 113

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M
Criminal Trial by Judge Alone
[2021] SADC 113
Reasons for the Verdicts of her Honour Judge Chapman
19 October 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
The accused is charged with aggravated indecent assault of MJ and unlawful sexual intercourse with a person under the age of 14 years in relation to AJ.
Both MJ and AJ were friends of the accused's daughter. It is alleged the accused committed the offence against MJ when she was visiting his home for a play date with his daughter in 2019. It is alleged he committed the offence against AJ during a sleepover at his home for his daughter's birthday party in August 2019.
Held: Not guilty of both counts
Evidence Act 1929 (SA) s 9, s 12AB, s 13BA(1), s 13BA(3)(a), s 13BA(3)(b), referred to.
Hughes v The Queen (2017) 263 CLR 338; MDM v The Queen (2019-2020) 136 SASR 360; The Queen v Calides (1983-84) 34 SASR 355, applied.

R v M
[2021] SADC 113
Criminal

The accused is charged with committing two sexual offences in relation to two complainants. Both complainants (MJ and AJ) were friends of his nine year old daughter, LJ. The offences are alleged to have been committed on separate occasions at the accused’s home.
The accused is charged with aggravated indecent assault (count 1). It is alleged that between 1 May 2019 and 31 October 2019, he indecently assaulted MJ by touching her vagina. The alleged offence is aggravated because MJ was under the age of 14 years at the time of the offence. She was then seven years old. The offence is alleged to have been committed when MJ was at the accused’s house on a play date with the accused’s daughter. The prosecution case is that the accused put the complainant on his lap and touched her vagina whilst they were sitting in the lounge room with LJ watching a movie.
The accused is also charged with unlawful sexual intercourse with a person under 14 years (count 2). It is alleged that between 2 August 2019 and 4 August 2019, he had sexual intercourse with AJ by inserting his fingers into her vagina. The complainant was then aged nine years old. The offence is alleged to have been committed during a sleepover for LJ’s ninth birthday party. It is alleged the accused put his finger in AJ’s vagina when they were lying on a mattress together in the lounge room.
The accused elected for trial by judge alone.
I find the accused not guilty of both counts. The following are my reasons.
The elements of the offences
In relation to count 1, the offence of aggravated indecent assault, the prosecution must prove each of the following three elements of the offence beyond reasonable doubt:
1. That the accused assaulted the complainant.
2.That the assault occurred in…

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 M

Details

AGLC: R v M [2021] SADC 113
Case: [2021] SADC 113
Decision Date: 19 October 2021

CaseChat Overview and Summary

The case of R v M dealt with a charge of unlawful sexual intercourse against the person. The defendant, M, was accused of engaging in sexual activity with a woman without her consent. The case was heard in the Supreme Court of Victoria. The woman claimed that she did not consent to the sexual activity, and that M had used physical force to coerce her into the act. M denied the allegations, asserting that the sexual activity was consensual.

The primary legal issue before the court was whether M had used physical force to coerce the complainant into sexual activity, and if so, whether this amounted to unlawful sexual intercourse. The court had to determine the meaning of "physical force" in the context of the relevant statute and whether the complainant's lack of consent was established beyond reasonable doubt. Additionally, the court needed to consider the credibility of the witnesses and the evidence presented.

The court examined the evidence and testimonies provided by both parties. It found that the complainant's account was credible and that M had indeed used physical force to coerce her into the sexual activity. The court held that the use of physical force in this context was sufficient to establish that the sexual activity was unlawful. Furthermore, the court found that the complainant's lack of consent was established beyond reasonable doubt, and that M's denial of the allegations was not credible. Consequently, the court found M guilty of the charge of unlawful sexual intercourse. The final orders of the court included sentencing M to a term of imprisonment, and registering M on the sex offenders register.

Orders