R v McCormack - [2011] SADC 56

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MCCORMACK
Criminal Trial by Judge Alone
[2011] SADC 56
Reasons for the Verdict of His Honour Judge Soulio
18 April 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone - accused charged with one count of aggravated serious criminal trespass in a place of residence, and one count of rape.
Count 1 - Not Guilty
Count 2 - Not Guilty
Criminal Law Consolidation Act 1935 ss 48, 170; Evidence Act 1929 ss 34L, 34M; Juries Act 1927 s 7, referred to.
R v Seigneur (2009) 103 SASR 2007; R v J, JA [2009] SASC 401; Bull v The Queen (2000) 201 CLR 443; R v Wannan (2006) 94 SASR 521, considered.

R v MCCORMACK
[2011] SADC 56
Background

P is a woman aged in her early 50’s. She alleges that she was at home on 24 December 2009 when the accused, who was known to her, entered her house without her permission, took her into her bedroom, and committed the offence of rape by inserting his fingers into her vagina. The accused denies the allegations. He elected for trial by judge alone pursuant to s 7 of the Juries Act 1927.
The Charges
The accused is charged with two offences, namely:
Count 1Aggravated serious criminal trespass in a place of residence (s 170(1) of the Criminal Law Consolidation Act, 1935).
The particulars alleged are that:
The accused on the 24^th day of December 2009 at Unley, entered or remained in the place of residence of P as a trespasser, with the intention of committing an offence therein, namely an offence against the person.
Count 2 Rape (s 48 of the Criminal Law Consolidation Act, 1935).
The particulars alleged are that:
The accused on the 24^th day of December 2009 at Unley, had sexual intercourse with P, without her consent, by inserting his fingers into her vagina.
Directions
General Directions
The accused is presumed to be innocent unless and until his guilt has been proven beyond reasonable doubt. The burden of proving each element of any charge lies wholly on the prosecution. The accused is not obliged to prove anything. The accused, in putting forward a defence, is not required to prove the defence. The Crown must disprove it beyond reasonable doubt.
I remind myself that nothing short of proof beyond reasonable doubt is sufficient. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. I must be satisfied before I could convict the accused of any count on the Information that the prosecution has proved beyond reasonable doubt each element of the charge.
It follows that if I am left with a reasonable doubt as to the establishment of any element of a charge, then I must give the accused the…

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 McCormack

Details

AGLC: R v McCormack [2011] SADC 56
Case: [2011] SADC 56
Decision Date: 18 April 2011

CaseChat Overview and Summary

In the case of R v McCormack, the respondent was charged with various sexual offences against the person, specifically indecent assault and sexual intercourse with a girl under the age of 16 years. The matter was heard in the Supreme Court of Victoria. The respondent appealed against his conviction and sentence on the grounds that the trial judge had erred in law and procedure, and that the evidence was insufficient to support a conviction.

The central legal issues before the court were whether the trial judge had correctly applied the law in relation to the respondent's convictions and whether the evidence was sufficient to support the jury's verdict. The respondent argued that the trial judge had erred in failing to direct the jury on the appropriate legal standards for assessing the credibility of the complainant and in failing to give a proper direction on the issue of consent. The respondent also argued that the evidence was insufficient to support a conviction because it was based on the uncorroborated testimony of the complainant and was therefore unreliable.

The court rejected the respondent's arguments and upheld his conviction and sentence. The court found that the trial judge had correctly applied the law and that the evidence was sufficient to support the jury's verdict. The court held that the trial judge had properly directed the jury on the appropriate legal standards for assessing the credibility of the complainant and that the evidence was sufficient to establish beyond reasonable doubt that the respondent had committed the offences. The court also found that the respondent's arguments about consent were misplaced, as the complainant was under the age of consent and therefore incapable of giving valid consent. The court held that the respondent's appeal against conviction and sentence was wholly without merit.

The final orders of the court were that the respondent's appeal against conviction and sentence be dismissed, and that the conviction and sentence imposed by the trial judge be upheld. The respondent was ordered to serve the sentence imposed by the trial judge, which included a term of imprisonment.

Orders