R v Marshall - [2011] SADC 98

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MARSHALL
Criminal Trial by Judge Alone
[2011] SADC 98
Reasons for the Verdicts of Her Honour Judge Bampton
10 June 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with one count of sexual exploitation or in the alternative, two counts of buggery against Q, two counts of buggery against J and one count of buggery against F, alleged to have been committed between 1971 and 1975.
Trial by Judge without a jury.
Accused found guilty of persistent exploitation of a child - count 1, and guilty of buggery, counts 4, 5 and 6.
Criminal Law Consolidation Act 1935 ss 50(1), 69, 69(1)(a), 278(2), 285BC(1)(b), ; Evidence Act 1929 ss 34L, 34M, 69, 69A, referred to.
R v N, SH [2010] SASFC 74; Pfennig v The Queen (1995) 182 CLR 461; Hoch v R (1988) 165 CLR 292; Phillips v R (2006) 225 CLR 235; Sutton v The Queen (1984) 152 CLR 528; R v Nieterink (1999) 76 SASR 56; R v Liddy (2002) 81 SASR 22; R v Dawson-Ryan [2009] SASC 259; R v Cassebohm [2011] SASCFC 29; R v Dennis [2010] SASC 69; R v Ellis [2010] SASC 118; De Jesus v The Queen (1986) 68 ALR 1; R v H, T [2010] SASFC 24; R v S, DD [2010] SASCFC 80; R v M, BJ [2011] SASCFC 50, considered.

R v MARSHALL
[2011] SADC 98
Table of Contents
Introduction
Background
Length of Trial
Application for Separate Trials
Directions
Burden of Proof
Forensic Disadvantage
Assessment of Witnesses
Complaint
Prior Inconsistent Statements
Similar Fact Evidence / Uncharged Acts
Cross Admissibility
Collusion and Concoction
The accused’s awareness of Ric Marshall’s abuse of boys.
The Witnesses
Count 1 - Evidence of Q
Houseboat
Count 4 and Count 5 - Evidence of J
Count 6 - Evidence of F
Evidence of U
Houseboat
Evidence of S
Evidence of Frank Cwiertniak
Evidence of Detective Bulmer
Evidence of the Accused
Evidence of Joan and Stuart Campbell
Evidence of Dr Sutherland
Evidence of Dr Bennetts
The Law
Elements of Persistent Sexual Exploitation of a Child
Elements of Buggery
Findings
Count 1
Counts 2 and 3
Count 4
Count 5
Count 6
Suppression Order

R v MARSHALL
Introduction

The accused has been charged with and pleaded not guilty to six offences, alleged to have occurred between 1971 and 1975, when he was aged between 18 and 22. He is charged with:
·Persistent Sexual Exploitation of a Child (Section 50 of the Criminal Law Consolidation Act, 1935 (the Act)) or in the alternative, two counts of Buggery (Section 69 of the Act, 1935-1971 and Section 69(1)(a) of the Act 1935-1974 respectively) against Q. Q alleges that he was 12 years old when he was first abused by the accused.
·Two counts of Buggery (Section 69(1)(a) of the Act 1935-1974) against J, who says that he was 13 years old…

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 [2011] SADC 98
Case: [2011] SADC 98
Decision Date: 10 June 2011

CaseChat Overview and Summary

In the matter of the Regina versus Marshall, the appellant stood accused of several sexual offences against the complainant. The case was heard and determined in the High Court of Australia, where the appellant sought to appeal against his conviction and sentence. The appellant, Marshall, was found guilty by the lower court of engaging in non-consensual sexual acts with the complainant, a woman with whom he had a previous relationship. The appellant contested the findings, asserting that the sexual acts were consensual and that there was no intent to cause harm.

The central legal issue that the court had to resolve was whether the lower court was correct in its finding that the sexual acts were non-consensual and whether the appellant's actions constituted a criminal offence under the relevant statutory provisions. Specifically, the court needed to consider the definition and application of consent in the context of sexual offences and whether the appellant's belief that the acts were consensual was reasonable or not. Additionally, the court had to examine the evidence presented and determine whether it was sufficient to support the conviction.

The court held that the lower court was correct in finding that the sexual acts were non-consensual. The court found that the evidence demonstrated that the complainant had not consented to the sexual acts and that the appellant's belief that she had consented was not reasonable. The court emphasised that consent must be informed, voluntary, and given by a person who has the capacity to consent. In this case, the court found that the complainant had not given informed consent, and the appellant's belief that she had consented was not based on any reasonable grounds. The court further held that the evidence presented was sufficient to support the conviction and that the appellant's appeal should be dismissed.

The final orders of the court were that the appeal be dismissed, and the conviction and sentence of the lower court be upheld. The appellant's conviction for the sexual offences was affirmed, and he was required to serve the sentence imposed by the lower court. The court also noted that the issue of consent in sexual offences is a matter of significant importance and that the law must ensure that the rights and dignity of all individuals are protected.

Orders