R v Masina (No 3)

[2020] ACTSC 154

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Masina (No 3)

Citation:

[2020] ACTSC 154

Hearing Dates:

10 – 16 June 2020

DecisionDate:

19 June 2020

Before:

Mossop J

Decision:

On counts 1, 2, 3 and 4 in the indictment dated 13 September 2019 the accused, Alofa Talouli Masina, is not guilty.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial by judge alone – sexual intercourse without consent – acts of indecency – strong complaint and tendency evidence – temporally confined nature of allegation – accused had alibi for specific dates – satisfied of each element of the offences – reasonable doubt about whether offending occurred in the period specified on indictment – not guilty  

Legislation Cited:

Crimes Act 1900 (ACT), ss 50, 54, 60, 67

Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 49, 57, 80B

Supreme Court Act 1993 (ACT) ss 68B, 68C

Cases Cited:

Banditt v The Queen [2005] HCA 80; 224 CLR 262

Director of Public Prosecutions v Jarvis (a pseudonym) [2018] VSCA 173; 55 VR 543
Gillard v The Queen [2014] HCA 16; 236 A Crim R 586
R v Bauer (a pseudonym) [2018] HCA 40; 92 ALJR 846
R vH (1995) 83 A Crim R 402
R v Jacobs [1993] 2 Qd R 541
R v Masina [2020] ACTSC 89
R v Masina (No 2) [2020] ACTSC 152
R v Pfitzner (1976) 15 SASR 171
R v Stevens (No 2) [2017] ACTSC 296
TKWJ v The Queen [2002] HCA 46; 212 CLR 124

WGC v The Queen [2007] HCA 58; 233 CLR 66

Parties:

The Queen (Crown)

Alofa Talouli Masina (Accused)

Representation:

Counsel

S Jerome (Crown)

G Urbas (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

McKenna Taylor (Accused)

File Number:

SCC 196 of 2019

MOSSOP J:

Introduction

1. The accused, Alofa Talouli Masina, is alleged to have committed four offences “on or about 2 February 2018”.  The complainant in relation to each offence is a woman who will be referred to in these reasons as “the complainant”.  The offences alleged are:

(a)count 1: committing an act of indecency on the complainant contrary to s 60 of the Crimes Act 1900 (ACT);

(b)count 2: sexual intercourse without consent contrary to s 54 of the Crimes Act;

(c)count 3: committing an act of indecency on the complainant contrary to s 60 of the Crimes Act; and

(d)count 4: committing an act of indecency on the complainant contrary to s 60 of the Crimes Act.

1. The accused was a pastor in the Matagofie Baptist Church, the membership of which was largely or exclusively people of Samoan heritage.  Although the church was based in Sydney, the complainant was also considered to be part of the church even though she lived in Canberra.  The accused is alleged to have attended her house in order to perform a “prayer of deliverance”.  He is alleged to have instructed her that it was necessary, as part of…