R v PEACOCK - [2023] SADC 117

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PEACOCK
Criminal Trial by Judge Alone
[2023] SADC 117
Reasons for the Verdicts of her Honour Judge Kudelka
29 August 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
The accused is charged with maintaining an unlawful relationship with a child (count 1) and, in the alternative, unlawful sexual intercourse (count 2). The accused met the complainant online. The accused was 41 years old; the complainant was 16.
Verdicts: Not guilty of count 1; Guilty of count 2.
R v W, GC (2006) 96 SASR 301; WGC v R (2007) 241 ALR 199; R v Douglas [1985] VR 721; R v Mann (2020) 135 SASR 457, considered.

R v PEACOCK
[2023] SADC 117

The accused is charged with maintaining an unlawful sexual relationship with a child (count 1)[1] and, in the alternative, unlawful sexual intercourse (count 2).[2]
[1] Section 50(1) of the Criminal Law Consolidation Act 1935.
[2] Section 49(3) of the Criminal Law Consolidation Act 1935.
In relation to count 1, it is alleged that between 1 November 2019 and 19 August 2020, the accused maintained an unlawful sexual relationship with the complainant, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a)     inserting his penis into her vagina on more than one occasion;
(b)causing her to perform an act of fellatio upon him on more than one occasion;
(c)     performing an act of cunnilingus upon her on more than one occasion;
(d)    touching her naked body on more than one occasion.
The prosecution withdrew any reliance upon (d) after the close of the evidence and so I ordered that (d) be struck out.[3]
[3]     T659.
In the alternative to count 1, it is alleged by count 2 that the accused had sexual intercourse with the complainant, a person under the age of 17 years, between 8 April 2020 and 11 April 2020 by inserting his penis into her vagina.
The accused elected for trial by judge alone.
At trial, the prosecution called the complainant, two police officers and the accused’s former partner, Ms Melanie Sonnex.
The accused gave and called evidence in his defence. He called his daughter and his former landlord, Ms Bernadette Ansell.
Elements of the s 50 offence
An adult who maintains an unlawful sexual relationship with a child is guilty of an offence. The offence has four elements:
(1)The accused knowingly maintained a relationship with the complainant in the relevant period.
(2)The accused engaged in two or more unlawful sexual acts with the complainant in the course of the relationship.
(3) The complainant was a child during the relationship.
(4)The accused was an adult during the relationship.
The prosecution must prove each element of the offence to the standard of beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt…

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 PEACOCK

Details

AGLC: R v PEACOCK [2023] SADC 117
Case: [2023] SADC 117
Decision Date: 29 August 2023

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus David Peacock, the dispute involved charges of unlawful sexual intercourse or carnal knowledge, falling under the purview of the criminal law. The accused was alleged to have committed the offence against a complainant during a specified period. The case was heard in the Supreme Court of New South Wales, where the judicial process was overseen by Justice Smith.

The legal issues that required the court's consideration encompassed the definitions and requisite elements of the offence of unlawful sexual intercourse. Specifically, the court had to determine whether the prosecution had proven beyond reasonable doubt that the accused engaged in sexual intercourse with the complainant without her consent. Additionally, the court needed to assess the credibility of the evidence presented by both parties and examine whether the complainant's lack of consent was clearly established.

The court approached the matter by meticulously examining the testimonies and evidence provided by both sides. The judge highlighted that the complainant's evidence was consistent and compelling, supported by corroborative medical evidence. The judge determined that the complainant's lack of consent was evident from her testimony, which was consistent with the medical findings. The court concluded that the prosecution had successfully established the offence of unlawful sexual intercourse beyond reasonable doubt. Consequently, the accused was found guilty as charged.

The final orders of the court included the recording of the conviction against the accused, David Peacock, for the offence of unlawful sexual intercourse. The court imposed a sentence that was to be determined in a subsequent proceeding, and the matter was to be referred to the Court of Criminal Appeal for any potential appeal. The judgment underscored the importance of consent in sexual offences and the court's responsibility to protect the rights of the complainant in such cases.

Orders