R v Nelson - [2005] SADC 154

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NELSON
Criminal Trial by Judge Alone
Judgment of His Honour Judge Barrett
18 November 2005
CRIMINAL LAW
Criminal trespass in a place of residence; Rape; Attempted rape.
Criminal Law Consolidation Act 1935, referred to.
The Queen v Pascoe (2004) 90 SASR 509; Tovehead Pty Ltd v Freeman (2003) 175 FLR 311; R v Collingridge (1976) 16 SASR 117; Azzopardi v The Queen (2001) 205 CLR 50; Mule v R [2005] HCA 49, considered.

R v NELSON
[2005] SADC 154
Introduction

The accused has pleaded not guilty to charges of criminal trespass (count 1 on the information), rape (count 3) and attempted rape (count 4). No guilty pleas have been entered before me. These counts relate to events late on the evening of the 18^th November 2004 going into the early morning of the 19^th November. The principal witness, Ms Pittaway, gave evidence that a man did certain things to her during that time. She gave evidence of the three offences mentioned above and was challenged on each. The accused did not give evidence. What was not challenged, either in cross-examination of Ms Pittaway, or in counsel’s address is that the accused is the man who was with her on that night. It is not disputed he came into her house on the 18^th November (although it is disputed he did so as a trespasser), that he removed her and her four year old daughter from the house and kept them in his control for an hour or more, that he took them to some scrub outside Ceduna and that there some sort of sexual contact between them. It is not disputed that as she was driving away the accused punched her in the face and took her car, leaving her and her daughter on the side of the ride. It is not disputed that he drove some 150 kilometres west of Ceduna. In summary then, what is in dispute is that he entered her house as a trespasser, and that when he took her to the scrub land he raped her and it is disputed that in a separate incident he attempted to rape her. The Crown bears the onus of proving each element of each of those offences beyond reasonable doubt.
The Evidence
I deal with the evidence I have heard.
The first Witness was Ms Jody Pittaway. She is 27 years old and lives in Chadwick Street, Ceduna. She lives there with her two children, Joshua who is now 8 and Rebecca who is now5. She has lived at that address since 1996. She separated from the children’s father in 2001. She has worked at the Ceduna District Health Service since 1992 doing cooking and cleaning. She was born in Whyalla and grew up in Ceduna. She left school halfway through year 10. She gave her evidence by remote control television. Her mother was present with her as court companion.
On 18…

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 Nelson

Details

AGLC: R v Nelson [2005] SADC 154
Case: [2005] SADC 154
Decision Date: 18 November 2005

CaseChat Overview and Summary

The District Court of South Australia, presided over by His Honour Judge Barrett, heard the case of R v Nelson, a criminal trial by judge alone. The accused, Nelson, pleaded not guilty to charges of criminal trespass, rape, and attempted rape. The case was built on the evidence of Ms Jody Pittaway, who alleged that Nelson entered her residence uninvited, restrained her and her daughter, and sexually assaulted her. Nelson did not give evidence in his defense, and no other evidence was presented. The Crown argued that Nelson's entry into Ms Pittaway's residence was without consent, and that he was either aware of or reckless as to the presence of someone in the house. The defense countered that Nelson believed he had consent or had not considered the question of consent due to his intoxicated state and fear for his safety. The court found Nelson not guilty of criminal trespass, as it could not be established beyond reasonable doubt that he was aware of or reckless as to the presence of someone in the house at the time of entry. The court found Nelson guilty of rape, as it was established beyond reasonable doubt that he had sexual intercourse with Ms Pittaway without her consent, and that he knew she was not consenting. The court found Nelson not guilty of attempted rape, as there was reasonable doubt as to whether he intended to penetrate Ms Pittaway again after the initial rape. However, the court found Nelson guilty of indecent assault, as it was established beyond reasonable doubt that he deliberately touched Ms Pittaway indecently and knew she was not consenting.

Orders