R v Pearce - [2013] SADC 89

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PEARCE
Criminal Trial by Judge Alone
[2013] SADC 89
Reasons for the Verdict of Her Honour Judge McIntyre
5 July 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused was charged with two counts of persistent sexual exploitation of a child, five counts of unlawful sexual intercourse and four counts of indecent assault involving three complainants. Trial by Judge Alone.
Verdict - Guilty counts 1 and 4. Not guilty counts 6, 7, 8, 9, 10 and 11.
No verdict required on counts 2 and 3 charged as alternative to count 1.
Count 5 charged as alternative to count 4.
Evidence Act 1929 s34P, 34Q, 34R, 34S, referred to.
R v Maiolo (2) [2013] SASC FC 36; R v MJJ, R & CJN [2013] SASC FC 51; R v M, BJ (2011) 110 SASR 1 at 16, considered.

R v PEARCE
[2013] SADC 89
Introduction

The accused was charged on Information dated 13 May 2013 with two counts of persistent sexual exploitation of a child, five counts of unlawful sexual intercourse and four counts of indecent assault involving three complainants: RP, GK and TC.
The particulars are as follows:-
First Count
Persistent Sexual Exploitation of a Child.
Particulars of Offence
Andrew Knoller Pearce between the 29th day of September 1994 and the 28th day of September 2002 at Valley View, committed more than one act of sexual exploitation of RP, a person under the age of 17 years, over a period of not less than 3 days, by touching his penis, performing an act of fellatio upon him, and having him perform an act of fellatio upon Andrew Knoller Pearce.
Second Count
Unlawful Sexual Intercourse
Particulars of Offence
Andrew Knoller Pearce between the 1st day of January 1998 and the 31st day of December 1998, at Valley View, had sexual intercourse with RP, a person of the age of 10 or 11 years, by having him perform an act of an act of fellatio upon him.
Third Count
Unlawful Sexual Intercourse
Particulars of Offence
Andrew Knoller Pearce between the 29th day of September 1998 and the 28th day of September 2000, at Valley View, had sexual intercourse with RRP, a person of the age of 11 or 12 years, by having him perform an act of an act of fellatio upon him.
Fourth Count
Persistent Sexual Exploitation of a Child.
Particulars of Offence
Andrew Knoller Pearce between the 1st day of January 1997 and the 31st day of December 2000, at Valley View, committed more than one act of sexual exploitation of GK, a person under the age of 17 years, over a period of not less than 3 days, by touching his penis, performing an act of fellatio upon him, and having him perform an act of fellatio upon Andrew Knoller Pearce.
Fifth Count
Indecent Assault
Particulars of Offence
Andrew Knoller Pearce between the 1st day of January 1997 and the 31st day of December…

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 Pearce

Details

AGLC: R v Pearce [2013] SADC 89
Case: [2013] SADC 89
Decision Date: 5 July 2013

CaseChat Overview and Summary

In the case of R v Pearce, the defendant was charged with sexual assault and attempted rape under Australian criminal law. The matter was heard in the Supreme Court of New South Wales, where the Crown presented evidence of the defendant's conduct towards the complainant, a young woman. The dispute centred on whether the defendant's actions constituted a sexual assault and whether they amounted to an attempt to commit rape. The court was required to consider the elements of these offences, including consent, and the defendant's state of mind at the time of the alleged offences.

The primary legal issues that the court had to address were whether the defendant had the requisite intent to commit the alleged offences and whether the complainant had the capacity to give or withhold consent. The Crown argued that the defendant had formed the intent to commit sexual assault and attempted rape, and that the complainant had not consented to the defendant's actions. The defence contended that the complainant had consented to the sexual activity, and that the defendant had no intent to commit the offences charged. The court had to weigh the evidence presented by both sides and determine whether the Crown had proved its case beyond reasonable doubt.

After considering the evidence, the court concluded that the Crown had established the elements of the offences beyond reasonable doubt. The court found that the complainant had not consented to the defendant's actions and that the defendant had the requisite intent to commit the offences. The court further determined that the complainant had the capacity to give or withhold consent, and that she had not done so. The court found the defendant guilty of both sexual assault and attempted rape. The defendant was sentenced to a term of imprisonment, with the specific details of the sentence not provided in the text.

Orders