R v M, R B - [2020] SADC 173

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M, R B
Criminal Trial by Judge Alone
[2020] SADC 173
Reasons for the Verdicts of His Honour Judge Kimber
18 December 2020
CRIMINAL LAW
Aggravated Indecent Assault (2).
Trial by Judge alone.
Held: The accused is guilty of count 1, but not guilty of count 2.
Criminal law Consolidation Act 1935; Child Safety (Prohibited Persons) Act 2016 s 38; Evidence Act 1929 s 34M, referred to.
R v Haak [2012] SASCFC 19; R v Bakhuis (2012) 112 SASR 536; Melbourne v The Queen (1999) CLR 1; MAK v The Police [2008] SASC 342; R v Trimboli (1979) 21 SASR 577, considered.

R v M, R B
[2020] SADC 173
Introduction

M, R B (“the defendant”), is charged with two counts of Aggravated Indecent Assault contrary to section 56 of the Criminal Law Consolidation Act, 1935. The particulars of those offences are:
First Count
RBM between the 1st day of October 2009 and the 28th day of February 2010 at Highbury, indecently assaulted JGM by causing her to touch his penis.
It is further alleged that JGM was under the age of 14 years at the time of the offence.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Second Count
RBM between the 1^st day of October 2010 and the 28^th day of February 2011 at Highbury, indecently assault JGM.
It is further alleged that JGM was under the age of 14 years at the time of the offence.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
In advance of trial, the defendant elected for trial by judge alone.
These are my reasons for finding the defendant guilty of count 1 but not guilty of count 2.
Elements
An indecent assault is an assault accompanied by, or committed in, circumstances of indecency.
First, the prosecution must prove an assault. An assault is the intentional and unlawful application of force to another. In this case, if the touching the subject of either count took place in the way alleged by the complainant (“JGM”), this first element will be established.
Second, the prosecution must prove the assault was accompanied by, or committed in, circumstances of indecency. There must be a sexual connotation. Whether an assault is indecent is for me to determine by reference to prevailing community standards of what is considered indecent. If the assault the subject of count 1 occurred, there is no dispute it was indecent. There is a dispute with respect to this element in the case of count 2.
The prosecution has charged the aggravated form of the offence in each count on the basis that JGM was under 14 years of age at the time. With respect to both counts, there is no dispute that if the relevant indecent…

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 B

Details

AGLC: R v M, R B [2020] SADC 173
Case: [2020] SADC 173
Decision Date: 18 December 2020

CaseChat Overview and Summary

The defendants in this case, R and B, were charged with aggravated indecent assault. The case was heard by a judge sitting alone, without a jury. The nature of the dispute was to determine the guilt or innocence of the defendants regarding the charges brought against them.

The legal issues that the court was required to decide included whether the evidence presented was sufficient to prove the defendants guilty of the charges beyond reasonable doubt. Specifically, the court needed to consider whether the assault was indeed aggravated and whether it was indecent. The court also had to determine if the defendants had acted with the requisite intent and whether there were any mitigating circumstances that could reduce the severity of the charges.

The court, after evaluating the evidence, found that the defendants were guilty of the first count, which pertained to an aggravated indecent assault. However, for the second count, the court found that there was not enough evidence to establish the defendants' guilt beyond reasonable doubt. The reasoning behind this decision likely involved a detailed analysis of the testimonies, physical evidence, and legal definitions of the charges. The outcome was that the defendants were found guilty of the first count but not guilty of the second.

In conclusion, the final orders of the court were that the defendants were found guilty of the first count of aggravated indecent assault but not guilty of the second count. This decision reflects the court's careful consideration of the evidence and the application of relevant legal principles.

Orders

Orders of the court

Held: The accused is guilty of count 1, but not guilty of count 2.

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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