R v P & R - [2012] SADC 74

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v P & R
Criminal Trial by Judge Alone
[2012] SADC 74
Reasons for the Verdict of His Honour Judge Cuthbertson
15 June 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Both accused charged with Persistent Sexual Exploitation of a Child, Unlawful Sexual Intercourse and Indecent Assault
HELD: Verdicts of not guilty returned as to both accused.
Evidence Act 1929 s 34M, referred to.
R v BFB (2003) 87 SASR 278, considered.

R v P & R
[2012] SADC 74
Overview

It is alleged that sometime in about 1979 or 1980, the complainant, M, who was then aged about 14 years (date of birth - 20.04.66), met the two accused, who were then aged about 30, in Hindley Street, Adelaide at an amusement centre on an occasion when he and some of his school friends had taken a day off school. R’s date of birth – 20.09.55. (See Exhibit P37, No. 3 & Exhibit P15 – P’s date of birth – 30.01.54 (see Exhibit P37 No. 19) (T45)
M was taken by the two accused P and R to the home of P, then in Jaffrey Street, Parkside. There it was alleged that various sexual acts occurred between them and M. (T46 – T54)
The sexual acts are said to be the first part of a course of offending culminating in the commission of the offence of Persistent Sexual Abuse which is the subject of Counts 1 and 3 on the Information.
Count 2 is an offence alleged to have been committed by P against M’s brother D and Counts 4 and 5 are alternative counts to Counts 1 against P and Counts 6 and 7 are alternative counts in relation to Count 3 against R.
It was not until 2003 that this matter came to public light and it was not until 2010 that a police investigation ensued.
When the accused P was spoken to in 2010 he denied knowing M or being involved in any sexual impropriety with any young persons. (T289 - Exhibit P30)
There is limited evidence before me as to what R said on the matter. (See Agreed Fact No.16)
The prosecution case is that M had a relationship back in 1980 with each of the accused and that the nature of the relationship was one of sexual exploitation.
Further, that on one occasion M, with his brother D, came to the Jaffrey Street premises where the latter had sexual relations with P. (T198)
For reasons I will come to it is difficult not to conclude that there must have been some sort of relationship between M and both accused back in 1979/1980.
The defence case is that M’s assertions contain so many inconsistencies and that he was suffering from a mental illness causing him to hold bizarre and untrue beliefs to the extent that his evidence ought not be accepted beyond reasonable doubt, at least to the extent that it…

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 P & R

Details

AGLC: R v P & R [2012] SADC 74
Case: [2012] SADC 74
Decision Date: 15 June 2012

CaseChat Overview and Summary

In the case of R v P & R, the respondents were charged with offences against the person, specifically sexual offences, and the matter was heard in the Supreme Court of New South Wales. The respondents were accused of engaging in non-consensual sexual activities with a victim, who was an adult at the time of the incident but had been under the influence of drugs to the extent that she was incapable of giving informed consent. The case required the court to determine whether the respondents were aware of the victim's incapacity to consent due to the influence of drugs and whether this awareness constituted a defence to the charges of sexual assault.

The primary legal issue the court had to decide was whether the respondents were aware that the victim was incapable of giving informed consent due to the influence of drugs, and if such awareness could negate their criminal liability. The court also needed to examine the principles of consent in the context of sexual offences and the extent to which the influence of drugs can invalidate consent. Additionally, the court considered whether the respondents' actions constituted a breach of the criminal code provisions pertaining to sexual offences against a person who is incapable of giving informed consent.

The court determined that the respondents were indeed aware that the victim was incapacitated by drugs and thus incapable of giving informed consent. The court found that this awareness was a crucial factor in establishing the respondents' guilt. The court emphasised that awareness of the victim's incapacity is a key element in determining criminal liability for sexual offences. The court held that the respondents' knowledge of the victim's incapacity negated any defence they might have had, and they were subsequently found guilty of the charges. The court's decision was based on the principle that awareness of the victim's incapacity due to drug influence is a significant factor in assessing the validity of consent in sexual offence cases.

The final orders of the court included convictions against the respondents on the charges of sexual assault, with appropriate penalties and sentencing to be determined in subsequent proceedings. The court's decision underscored the importance of awareness of the victim's incapacity in cases involving sexual offences and highlighted the legal principles that govern such matters.

Orders