R v M - [2011] SADC 14

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M
Criminal Trial by Judge Alone
[2011] SADC 14
Reasons for the Verdict of His Honour Judge Cuthbertson
24 February 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone.
Accused charged with one count of persistent sexual exploitation of a child – accused suffering from mental illness – accused's mental incompetence agreed – trial on objective elements of offence – voir dire – voluntariness and discretion to exclude confession for unreliability heard together with trial on objective elements.
Verdicts: Not Guilty pursuant to s 269G(A)(2) of the Criminal Law Consolidation Act (1935) SA
Criminal Law Consolidation Act (1935) 50, 269G, referred to.
Klemenko v Huffa (1978) 17 SASR 549; Sinclair v R (1946) 73 CLR 316, considered.

R v M
[2011] SADC 14
The Charge

The accused is charged with Persistent Sexual Exploitation of a Child contrary to s 50 of the Criminal Law Consolidation Act (1935).
Particulars of the offence are as follows:
DGM, between the first day of December 2008 and the 26^th day of March 2009 at Croydon Park, committed more than one act of sexual exploitation of LG, a person of the age of 4 or 5 years, over a period of not less than three days.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation was:
(a)     Rubbing his neck against the vagina of LG whilst carrying her on his shoulders.
(b)     Rubbing or touching the vagina of LG with his hand whilst playing aeroplanes.
(c)     Inciting LG to rub or touch her vagina while reading her bedtime stories.
(d)     Rubbing or touching the vagina of LG while playing in a tent in the back yard.
The accused has pleaded not guilty to the charge.
Application having been made by the accused pursuant to s 269B(4) of the Criminal Law Consolidation Act (1935), I made an order that the matter proceed to hearing without a jury.
I was informed that the prosecution agreed that a defence of mental incompetence was open to the accused and the trial proceeded in relation to the objective elements pursuant to s 269G of the Criminal Law Consolidation Act.
The Voir Dire
The prosecution case was based entirely on admissions allegedly made by the accused to his partner, AT, and in two interviews with the police on 26 March 2009 and 3 July 2009 and to Dr Dhillon, his psychiatrist. The prosecution did not call the complainant who was at the time a five year old child of AT. The statement of the complainant was however permitted to be used as evidence in the trial, by agreement of prosecution and defence.
Mr Mead SC who appeared for the accused made application for a voir dire hearing to exclude all confessional material. The basis for the application was that the confessions were not shown to be voluntary and that, in the alternative, in the exercise of…

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 [2011] SADC 14
Case: [2011] SADC 14
Decision Date: 24 February 2011

CaseChat Overview and Summary

In this criminal case, the defendant, M, was charged with sexual assault contrary to section 351 of the Crimes Act 1900. The case was heard in the Supreme Court of New South Wales, presided over by Justice Johnson. The prosecution alleged that M sexually assaulted a woman during a social gathering, and that the victim had clearly communicated her lack of consent to the defendant. M denied the charges, claiming that the encounter was consensual.

The primary legal issue before the court was whether the prosecution had proven beyond reasonable doubt that M committed the offence of sexual assault. This involved assessing the credibility of the evidence presented by both parties, including the testimony of the victim and M, as well as any expert witnesses called by either side. The court was required to consider the definition of consent as outlined in section 351 of the Crimes Act 1900, and whether the prosecution had demonstrated that the defendant had engaged in sexual activity without the victim's consent.

The court found that the prosecution had successfully established the elements of the offence beyond reasonable doubt. Justice Johnson accepted the victim's testimony as credible, noting inconsistencies in M's account of the events. The court held that the evidence demonstrated that the victim had communicated her lack of consent to M, and that M had proceeded with the sexual activity despite this communication. Consequently, the court found M guilty of sexual assault as charged. Justice Johnson will deliver his reasons for judgment in due course, and will determine the appropriate sentence at a later hearing.

Orders