R v Marama - [2001] NTSC 1

R v Marama [2001] NTSC 1
PARTIES:THE QUEEN

v
JAMES ARAMA MARAMA

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:9929566
DELIVERED:  10 January 2001
HEARING DATES:  8-10 January 2001
JUDGMENT OF:  RILEY J
REPRESENTATION:
Counsel:
Prosecutor:A. Fraser
Defendant:P. Elliott
Solicitors:
Prosecutor:Office of the Director of Public Prosecution
Defendant:North Australian Aboriginal Legal Aid Service
Judgment category classification:    B
Judgment ID Number:  ril0101
Number of pages:  5

ril0101
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
R v Marama [2001] NTSC 1
No. 9929566

BETWEEN:
THE QUEEN

AND:
JAMES ARAMA MARAMA

CORAM: RILEY J
REASONS FOR JUDGMENT
(Delivered 10 January 2001)

The accused is charged, inter alia, with having sexual intercourse with a female without her consent. The Crown has invited me to address the issue of consent by reference to s 32 of the Criminal Code. It is submitted that I should not follow the decision of the Court of Criminal Appeal in McMaster v The Queen (1994) 4 NTLR 92. The basis of that submission is the contention that the decision of the High Court in Charlie v R (1999) 162 ALR 463 effectively overruled the earlier decision of the Court of Criminal Appeal in McMaster v The Queen.

At the time McMaster was decided sexual assaults were dealt with in s 192 of the Code in the following terms:

“192 SEXUAL ASSAULTS
(1)Any person who unlawfully assaults another with intent to have carnal knowledge or to commit an act of gross indecency is guilty of a crime and is liable to imprisonment for 7 years.
(2)If the person assaulted is under the age of 16 years and the offender is an adult, he is liable to imprisonment for 14 years.
(3)If he thereby causes bodily harm to the person assaulted or commits any act of gross indecency, he is liable to imprisonment for 14 years.
(4)If he thereby causes grievous harm to the person assaulted or has carnal knowledge, he is liable to imprisonment for life.”

That section has subsequently been amended. Dealing with the section as it then stood the Court of Criminal Appeal in McMaster v The Queen held that s 31 of the Criminal Code had application when the issue of absence of consent arose. Gray AJ (with whom Thomas and Priestly JJ agreed) said (at 99):
“In States where the elements of the crime of rape are governed by the common law, it is clear that it is an element of the crime that the accused intended to have sexual intercourse without consent. This requires proof by the Crown that the appellant knew the woman was not consenting or knew she may not be consenting and proceeded regardless. See R v Saragozza [1984] VR 187, R v McEwan (1979) 2 NSWLR 926 and R v Brown (1975) 10 SASR 139.
This means that a jury should be directed along these lines in all cases,…

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 Marama

Details

AGLC: R v Marama [2001] NTSC 1
Case: [2001] NTSC 1
Decision Date: 10 January 2001

CaseChat Overview and Summary

In the Supreme Court of the Northern Territory, the case of R v Marama was heard, where the accused, James Arama Marama, was charged with having sexual intercourse with a female without her consent. The legal issues addressed by the court revolved around the interpretation of the statutory provision, specifically s 32 of the Criminal Code, and whether the decision of the Court of Criminal Appeal in McMaster v The Queen (1994) 4 NTLR 92 should be followed. The Crown argued that the decision of the High Court in Charlie v R (1999) 162 ALR 463 had effectively overruled the earlier decision of the Court of Criminal Appeal in McMaster, and the court needed to address the issue of consent by reference to s 32 of the Criminal Code.

The court found that the relevant section of the Criminal Code, s 192, had been amended since the decision in McMaster. However, the application of the exculpatory provisions, including s 31, in circumstances similar to those in the present case had already been addressed by the Court of Criminal Appeal in McMaster. As there was no suggestion that the approach adopted by the Court of Criminal Appeal to that issue had been directly or implicitly overruled by the High Court in Charlie or elsewhere, the observations made in McMaster remained binding on the court. Consequently, the court decided to direct the jury in accordance with the approach adopted by the Court of Criminal Appeal in McMaster.

Orders