R v M R - [2008] ACTSC 24

R v M R [2008] ACTSC 24 (4 APRIL 2008)

CRIMINAL LAW – trial by judge alone – offence of incest in respect to a person under the age of 10 years –evidence insufficient to establish sexual intercourse.
CRIMINAL LAW – trial by judge alone – offence of act of indecency – charge not proved beyond reasonable doubt.

Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 8, 10, s 40, s 70
Supreme Court Act 1933 (ACT), s 68
Evidence Act 1971 (ACT), s 64,
Evidence Act 1995 (Cth), s 13, s 66, s 164, s 165
Crimes Act 1900 (ACT), s 62, s 70

Fleming v The Queen (1998) 197 CLR 250
R v Tran [2003] ACTSC 53
Graham v The Queen (1998) 195 CLR 606
DPP v Hester [1973] AC 296
R v Schlaefer (1984) 37 SASR 207

R v Prasad (1979) 23 SASR 161

No. SCC 14 of 2007

Judge: Gray J
Supreme Court of the ACT

Date: 4 April 2008

IN THE SUPREME COURT OF THE  )
  )  No. SCC 14 of 2007
AUSTRALIAN CAPITAL TERRITORY  )

THE QUEEN
against
M R

ORDER

Judge:  Gray J
Date:  4 April 2008
Place:  Canberra

THE COURT ORDERS THAT:

The accused is not guilty in respect of the charge that between 4 March 2006 and 6 March 2006 at Canberra in the Australian Capital Territory he engaged in sexual intercourse with the complainant the said complainant then being a person under the age of 10 years, to wit, 5 years of age, and who was to his knowledge, his lineal descendant.

The accused is not guilty in respect of the charge that between 4 March 2006 and 6 March 2006 at Canberra in the Australian Capital Territory he committed an act of indecency upon the complainant, the said complainant then being a person under the age of 10 years, to wit, 5 years of age.

Non publication

This proceeding is a sexual offence proceeding involving the daughter of the accused. Section 40 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) makes it a strict liability offence to publish the name of the complainant, protected information about the complainant, a reference or allusion that disclosure of the complainant’s identity or from which the complainant’s identity may reasonably be inferred. In these reasons, I do not refer to the name of the complainant nor to the names of witnesses who gave evidence where the publication of those names might identify the complainant. I have added an appendix to these reasons which I order not to be published but to be made available to the prosecution and the accused only to be used by them for the purposes of these and any subsequent proceedings.

The charges

The accused was arraigned before me on two counts. He pleaded not guilty to the charge that,

… between 4 March 2006 and 6 March 2006 at Canberra in the Australian Capital Territory [he engaged] in sexual intercourse with [the complainant] the said [complainant] then being a…

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 R

Details

AGLC: R v M R [2008] ACTSC 24
Case: [2008] ACTSC 24
Decision Date: 4 April 2008

CaseChat Overview and Summary

In the case of R v M R, the defendant faced two charges: one of incest with a person under 10 years old and another of committing an indecent act upon a person under 10 years old. Both charges were heard by a judge alone in a court of summary jurisdiction. The defendant was accused of engaging in these acts with his five-year-old daughter between 4 March 2006 and 6 March 2006 in Canberra, Australian Capital Territory.

The court was required to determine if the evidence presented was sufficient to prove the defendant's guilt beyond reasonable doubt for both charges. The key legal issues included whether the evidence was adequate to establish that the defendant had engaged in sexual intercourse with his daughter and whether the evidence proved the charge of committing an act of indecency upon her.

The court found that the evidence did not establish the offence of sexual intercourse as there was no direct evidence of penetration and the complainant's account of the events was inconsistent and unreliable. Regarding the charge of committing an act of indecency, the court concluded that the evidence did not prove this charge beyond reasonable doubt. The complainant's account was deemed unreliable and the court found it improbable that the defendant would have committed the alleged act in the presence of his daughter's older sister, as the complainant claimed.

The court acquitted the defendant of both charges. The reasons for the acquittals were detailed in the court's written reasons, which were not published to protect the identity of the complainant and other protected individuals. The court ordered that an appendix containing further details be made available only to the parties for use in these and any subsequent proceedings.

Orders

Orders of the court

1. The accused is not guilty in respect of the charge that between 4 March 2006 and 6 March 2006 at Canberra in the Australian Capital Territory he engaged in sexual intercourse with the complainant the said complainant then being a person under the age of 10 years, to wit, 5 years of age, and who was to his knowledge, his lineal descendant.

2. The accused is not guilty in respect of the charge that between 4 March 2006 and 6 March 2006 at Canberra in the Australian Capital Territory he committed an act of indecency upon the complainant, the said complainant then being a person under the age of 10 years, to wit, 5 years of age.

Non publication

1. This proceeding is a sexual offence proceeding involving the daughter of the accused. Section 40 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) makes it a strict liability offence to publish the name of the complainant, protected information about the complainant, a reference or allusion that disclosure of the complainant?s identity or from which the complainant?s identity may reasonably be inferred. In these reasons, I do not refer to the name of the complainant nor to the names of witnesses who gave evidence where the publication of those names might identify the complainant. I have added an appendix to these reasons which I order not to be published but to be made available to the prosecution and the accused only to be used by them for the purposes of these and any subsequent proceedings.

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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