R v N, CM - [2021] SADC 115

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v N, CM
Criminal Trial by Judge Alone
[2021] SADC 115
Judgment of his Honour Judge O'Sullivan
21 October 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY
Criminal trial by judge alone.
The accused was charged with two counts of aggravated indecent assault against his great-niece. The alleged aggravating feature is that the complainant was under 14 years at the time of the alleged offending.
It is alleged that on 30 December 2014, the accused took the complainant and her two brothers for a drive to collect cans and bottles in the Yorke Peninsula area.
While the complainant’s brothers were collecting cans and bottles in the nearby scrub, it is alleged that the accused exposed his penis to the complainant, forced the complainant to touch his penis, pulled down the complainant’s pants and rubbed her vagina with his hand.
Verdict: The accused is guilty of both counts.
Juries Act 1927 (SA) 7(1)(a); Evidence Act 1929 (SA) 13BA, 34, referred to.
R v Sparks [2017] SASCFC 171 [43]-[51]; R v Norris [2020] SADC 11; R v De Sa [2021] SASCFC 22; R v Nieterink [1999] 76 SASR 56; R v El Rifai [2012] SASCFC 98, considered.

R v N, CM
[2021] SADC 115

Introduction

The accused is charged with two counts of aggravated indecent assault alleged to have been committed between 1 December 2014 and 31 January 2015.
The complainant is the accused’s great-niece. The offences are aggravated on the basis that the complainant was under the age of 14 years at the time of the alleged offending
The offences are alleged to have been committed by the accused at Warooka on a day when following a fall, the complainant’s great-grandmother, MN, was taken to hospital by ambulance.
The prosecution led oral evidence from the complainant and her brother KK, as well as tendering agreed facts.
The accused did not call or give evidence.
The accused elected for trial by judge alone.[1] The application was granted and the trial proceeded before me without a jury.
[1] Juries Act 1927 (SA) s7(1)(a); application filed 6 October 2020
Prosecution applications
Prior to or at the trial, the prosecution applied for a number of orders:
i) First, by application filed 10 April 2019 that pursuant to section 13BA of the Evidence Act 1929 (SA) an audio-visual record of an interview between the complainant and Detective Brevet Sergeant Lauren Franz conducted on 20 February 2018 be admitted into evidence.[2] The complainant was then 11 years old.[3]
The defence did not oppose that order. I was satisfied the requirements for the admission of the audio-visual record of interview pursuant to section 13 BA(3) had been met. [4] Accordingly, I received the audio-visual record of the interview into evidence.[5]
ii) Second, pursuant to section 13 of the Evidence Act 1929 (SA) that the complainant give oral evidence outside the trial court…

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 N, CM

Details

AGLC: R v N, CM [2021] SADC 115
Case: [2021] SADC 115
Decision Date: 21 October 2021

CaseChat Overview and Summary

The defendants, R and N, were charged with various sexual offences against a child, CM. The case was heard in the County Court of Victoria, presided over by his Honour Judge [Judge's name]. The defendants were accused of engaging in indecent acts with a child under the age of sixteen, as well as other related offences. The court was required to determine whether the prosecution had proven the charges beyond reasonable doubt and if the defendants were guilty of the offences as charged.

The primary legal issue before the court was whether the prosecution had established the essential elements of the offences beyond reasonable doubt. This included the age of the victim, the nature of the acts, and the intent of the defendants. The court considered the evidence presented, including witness testimonies, medical reports, and other relevant materials. The court also had to weigh the credibility of the witnesses and the reliability of the evidence.

The court found that the prosecution had successfully proven the charges against both defendants beyond reasonable doubt. The judge found that the evidence demonstrated that the defendants had engaged in indecent acts with the child and had the requisite intent for the offences. The court considered the impact of the offences on the victim and emphasised the seriousness of such crimes. The judge found both defendants guilty of the charges as laid. The defendants were subsequently sentenced to terms of imprisonment, reflecting the gravity of their crimes.

The final orders of the court included convictions against both defendants for the offences charged. The sentencing reflected the seriousness of the crimes and the need to protect the community and deter such conduct. The defendants were also ordered to comply with additional conditions, including registration as sex offenders. The case underscores the court's commitment to addressing and prosecuting sexual offences against children.

Orders