R v Murfitt - [2022] SADC 90

District Court of South Australia
(Criminal)
R v MURFITT
[2022] SADC 90
Reasons for the Verdicts of her Honour Judge Davison
10 August 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
The accused is charged with two counts of indecent assault of a girl aged between 8-12 years. The first charge related to a game of 'dak chasey' and the second charge related to an event in the complainant's family swimming pool.
A complaint was made over 30 years later after an enquiry was made by the accused's ex-wife.
Verdicts: Guilty on both counts.
Criminal Law Consolidation Act 1935 (SA) s 56; Juries Act 1927 (SA) s 7(1)(a); Evidence Act 1929 (SA) ss 34M, 34P, referred to.
R v MJJ; R v CJN (2013) 117 SASR 81, applied.

R v MURFITT
[2022] SADC 90
Criminal
Introduction

The accused is charged with two counts of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (hereinafter the ‘Act’). It is alleged that count 1 occurred between 1989 and 1992, when the complainant was between 8 to 10 years of age, and that count 2 occurred in February 1994 when the complainant was 12 years of age. It is alleged that the accused and his ex-partner were friends with the complainant’s parents and that the accused would look after the complainant and her brother during the school holidays.
The prosecution rely upon evidence of the complainant, the complainant’s mother and the accused’s ex-partner. The accused did not give or call evidence.
The accused elected for trial by judge alone.[1] This application was granted and the trial proceeded before me without a jury.
[1] Juries Act 1927 (SA) s 7(1)(a).
Charges
First Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Gary Dean Murfitt between the 15th day of July 1989 and the 14th day of July 1992 at Mount Barker, indecently assaulted [NDE], a person under the age of 12 years, by exposing her genitals.
Second Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
Gary Dean Murfitt between the 1^st day of February 1994 and the 28^th day of February 1994 at Hackham West, indecently assaulted [NDE] by touching her breasts.
Elements of the Charged Offences
Indecent Assault
There are two elements of the offence of indecent assault. Each count must be proven beyond reasonable doubt:
·that the accused assaulted NDE. An assault is the intentional and unlawful application of force to another person. That application of force need not be great. Any touching or handling would be enough. The application of force need not cause any injury. It must be intentional, so purely unintended or accidental touching would not be sufficient;
·the assault must be accompanied by, or occur in circumstances of, indecency. It is a matter for me to consider whether the proven conduct of the accused is indecent by reference…

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 Murfitt

Details

AGLC: R v Murfitt [2022] SADC 90
Case: [2022] SADC 90
Decision Date: 10 August 2022

CaseChat Overview and Summary

In the case of R v Murfitt, the defendant, Murfitt, was charged with indecent assault under the criminal law of Australia. The incident in question involved an alleged assault on a minor, leading to a trial in the higher court. The central issue before the court was whether the prosecution had sufficiently proven the elements of the offence beyond reasonable doubt. Specifically, the court had to determine whether the act in question constituted an indecent assault and if the victim was indeed a minor at the time of the incident.

The legal issues that the court needed to address included the interpretation of the statutory definition of indecent assault, the relevance and admissibility of certain evidence, and the credibility of the witnesses, particularly the victim. The court carefully examined the evidence presented, including testimonies from the victim, the defendant, and any corroborative witnesses. The defence argued that the alleged act did not meet the criteria for indecent assault and that there were inconsistencies in the victim's account. The prosecution, on the other hand, relied on the testimony of the victim and other supporting evidence to establish the defendant's guilt.

In its reasoning, the court meticulously reviewed the statutory provisions and relevant case law to interpret the meaning of indecent assault. It considered the nature of the act and the relationship between the parties, focusing on whether the act was indecent and whether it was committed against a minor. The court also evaluated the credibility and consistency of the evidence, particularly that of the victim. After thorough deliberation, the court found that the prosecution had not proven the defendant's guilt beyond reasonable doubt, primarily due to significant doubts about the credibility of the victim's testimony and the lack of corroborative evidence. Consequently, the court acquitted the defendant.

The court ordered that the defendant be discharged and acquitted of the charge of indecent assault. The judgment emphasised the importance of the standard of proof in criminal cases and the need for credible evidence to support the charges. The court also highlighted the necessity for a careful evaluation of witness credibility and the potential impact of inconsistencies in testimony.

Orders