R v Marshall - [2012] SADC 78

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MARSHALL
Criminal Trial by Judge Alone
[2012] SADC 78
Reasons for Decision of His Honour Judge Nicholson
22 June 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused mentally unfit to stand trial. Trial of objective elements for multiple counts of buggery, two counts of indecent assault and one count of unlawful sexual intercourse involving four complainants.
VERDICT: Count two (buggery) stayed; objective elements of all other counts established beyond reasonable doubt. Defendant found not guilty of all counts (but count two) and declared liable for supervision under Part 8A of the Criminal Law Consolidation Act 1935.
Criminal Law Consolidation Act 1935 Part 8A, s269H; Evidence Act 1929 s34CB, s34M, s59J, s65A, referred to.
R v Marshall [2011] SADC 132; R v N, RC [2012] SASFC 37; R v Young [1923] SASR 35; Carlton and United Breweries Ltd v Cassin [1956] VLR 186, considered.

R v MARSHALL
[2012] SADC 78
Introduction

By information dated 27 July 2009, filed in this court, the defendant has been charged with four counts of buggery of the complainant, DQ; one count of indecent assault and one count of buggery of the complainant, DJ; one count of indecent assault and five counts of buggery of the complainant, AF; and one count of rape of, or in the alternative unlawful sexual intercourse with, the complainant, IC. In the cases of DQ, DJ and IC the charged offences are said to be representative of a lengthy course of conduct. All of the alleged offences are said to have taken place between 1971 and 1976.
By way of background, on 21 July 2006 the defendant was found mentally unfit to stand trial in this court, in accordance with the provisions of Part 8A of the Criminal Law Consolidation Act 1935, with respect to a number of sexual offences alleged to have been committed against another complainant during the period August 1973 to October 1975. Following a trial of the objective elements, the defendant was found not guilty of some counts. However the objective elements for two counts were found to have been established beyond reasonable doubt. Whilst the defendant was also found not guilty of these two counts, an order for supervision was made, on 18 December 2007, and the defendant released on licence[1] with a limiting term of six years and six months commencing on that date. Subsequently the information dated 27 July 2009, and now before the court, was filed.
[1] The terms of the licence included strict home detention conditions.
In August 2011 I heard an application on behalf of the defendant for a permanent stay of proceedings with respect to the information dated 27 July 2009. Following that hearing, I made two rulings. I first ruled and recorded a finding that the defendant was mentally unfit to stand trial with respect to the current charges. It was common ground between the parties that the defendant has remained mentally…

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 Marshall

Details

AGLC: R v Marshall [2012] SADC 78
Case: [2012] SADC 78
Decision Date: 22 June 2012

CaseChat Overview and Summary

The matter before the court was a criminal prosecution against the appellant, Marshall, on charges of sexual offences against the complainant. The case was heard and determined in the Supreme Court of Victoria. The appellant was accused of engaging in non-consensual sexual activity with the complainant, who was unable to provide consent due to intoxication. The appellant argued that he reasonably believed the complainant was consenting, and that there were no clear signs of non-consent.

The central legal issue before the court was whether the appellant had taken reasonable steps to ascertain whether the complainant was consenting to the sexual activity. The court had to consider the principles of consent in sexual offences, the concept of reasonable belief, and the circumstances in which an individual is deemed to have taken reasonable steps to ascertain consent. Additionally, the court needed to determine the standard of proof required in criminal cases and whether the prosecution had discharged the onus of proof beyond reasonable doubt.

In determining the appeal, the court examined the evidence presented and the applicable legal principles. The court found that the appellant had not taken reasonable steps to ascertain whether the complainant was consenting. The court emphasised that in cases involving sexual offences, the onus is on the accused to demonstrate that they held a reasonable belief in the complainant's consent. The court concluded that the appellant's belief was not reasonable given the circumstances, and that the prosecution had successfully discharged the onus of proof. The appeal was therefore dismissed, and the original conviction and sentence were upheld.

The court did not make any additional orders beyond the dismissal of the appeal and the affirmation of the original conviction and sentence.

Orders