R v RM (No 4)
[2023] NSWDC 93
•23 March 2023
District Court
New South Wales
Medium Neutral Citation: R v RM (No 4) [2023] NSWDC 93 Hearing dates: 14 March – 27 March 2023 Date of orders: 23 March 2023 Decision date: 23 March 2023 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 22
Catchwords: CRIMINAL PROCEDURE – 11 alleged sexual offences against biological daughter – defence application for directed verdicts on counts 5, 6 and 10
Legislation Cited: Crimes Act 1900 (NSW) ss 61H, 61HB, 61KC, 66, 66C
Criminal Procedure Act 1986 (NSW) s 306I
Cases Cited: Doney v R (1990) 171 CLR 207
Johnson v R [2017] NSWCCA 278
LK v The Queen (2010) 241 CLR 177
R v R (1989) 18 NSWLR 74
Texts Cited: Nil
Category: Procedural rulings Parties: Office of the Director of Public Prosecutions (ODPP)
RM (accused)Representation: Counsel:
Solicitors:
Mr C Reynolds for the ODPP
Ms K Hogan for the accused
ODPP
AJA Associates for the accused
File Number(s): 2020/00213495 Publication restriction: Non-publication order regarding the identity of the accused and the complainant
JUDGMENT
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The accused is tried on indictment of 11 counts of sexual offences allegedly committed against his daughter arising from 9 alleged incidents occurring when she was aged between 9 and 18.
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The Crown has closed its case. Instantly, Counsel for the accused applied for directed verdicts on three of those counts. They are as follows.
Count 5: contrary to s 66C(2) of the Crimes Act 1900 (NSW) (the "Crimes Act"), between 17 January 2015 and 31 December 2015, at Glendenning in the state of New South Wales, the accused had sexual intercourse with the complainant, a person above the age of ten years and under the age of 14 years; namely, 13 years, in circumstances of aggravation, namely, the complainant was under his authority.
Count 6: contrary to s 66C(4) of the Crimes Act, the accused, between 17 January 2015 and 16 January 2017, at Glendenning in the state of New South Wales, had sexual intercourse with the complainant, a person above the age of ten years and under the age of 16 years; namely, 13 or 14 years, in circumstances of aggravation, namely, the complainant was under his authority.
Count 10: contrary to s 61KC(a) of the Crimes Act, that the accused on 19 July 2020, at Glendenning in the state of New South Wales, sexually touched the complainant without her consent and knowing that she was not consenting.
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A verdict of not guilty may be directed only if "there is a defect in the evidence such that taken at its highest, it will not sustain a verdict of guilty": Doney v R (1990) 171 CLR 207 at [214] - [215]; LK v The Queen (2010) 241 CLR 177 at [29]. It is not enough that the trial judge forms a view that a guilty verdict would be unsafe or unsatisfactory" R v R (1989) 18 NSWLR 74.
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The applications are made on the basis that on each of the counts identified and the evidence relied upon in its case, the Crown cannot prove all of the essential elements of the offences.
Count 5
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Earlier today I gave judgment in relation to the Crown's indication that it would rely upon a statutory alternative charge to this count. That indication was supplied in circumstances where it is common ground the complainant's evidence about the relevant alleged incident was that she thought she was "13 or 14" when it occurred. If the jury found that she was 14, so it was argued, the offending would fall outside of the date range for count 5 and the accused should be acquitted. There is no doubt that as a result of the complainant's evidence, the Crown has indicated its intention to rely upon a statutory alternative charge under s 66C(4). Contrary to what might have been conveyed by the accused's submission, this does not represent an abandonment or withdrawal of count 5.
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Taking the Crown's case on count 5 at its highest, it would be open for the jury to find that the complainant was 13. There is no occasion to take the fact finding inquiry about this count out of the jury's hands.
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The application for directed verdict in relation to count 5 is refused.
Count 6
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An essential element of this offence is that the accused had sexual intercourse with the complainant.
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The complainant's evidence about this was given at the original trial on 10 March 2023, which was discontinued after a jury discharge. That original evidence was recorded and replayed to the jury under s 306I of the Criminal Procedure Act 1986 (NSW) for trials of this kind. The transcript of that original evidence (T 42 - 44) was relevantly as follows:
"Q. Okay, when he's on top of you under the blanket, what does he do then?
A. He would he would grab his penis and put it near my vagina.
Q. Was his penis hard or soft?
A. It felt hard.
Q. When he put his penis near your vagina, what did he do with it, if anything?
A. Well, at first, he kind of just put it near it, and then he had begun to kind of move his hips, like – in, like a sideways motion.
Q. When his penis was near your vagina and he was moving his hips in a sideways motion, what did you feel on your vagina?
A. His penis.
Q. Where in your vagina, or where on your vagina, could you tell us where his penis was?
A. It was kind of just like he was never like it was never in, but it was like almost in. I'm not sure how else to describe that.
Q. I might just ask you some more questions about that?
A. Yep.
Q. Do you know the proper words for your vagina, the outer lips of your vagina?
A. Yes.
Q. Would you agree if I said the outer lips of the vagina were the labia majora? Do you understand that term?
A. Yes.
Q. If you think about your labia majora and you think about where the accused's penis was at the time that you're telling us about, was it outside the lips of the labia majora or inside the lips of the labia majora or something else?
A. It was, kind of, like, both, in a way. It was, kind of, like in the middle ground. Like, it would never kind of, yeah.
Q. You say both. Do you mean at different times?
A. Yeah.
Q. You said before he was rocking his hips in a sidewards motion. How long was he doing that for?
A. If I recall, I think it was about 15 to 20 minutes.
Q. Can I ask you some more questions about what you were feeling on your vagina
A. Yes.
Q. during that 15 to 20 minutes. Do you know what the vaginal canal is? The opening to the vaginal canal?
A. Sorry, could you describe that?
Q. No, I'm just asking you do you know what the opening to the vaginal canal is? If you do, you can let us know, if you don't, that's fine. You can just tell us.
A. I'm not too sure.
Q. I apologise, I know it might be a distressing question, what about your clitoris at that time? Do you know what the clitoris is?
A. Yes.
Q. Could you feel the accused's penis on your clitoris at that time or not?
A. Yes.
Q. You've indicated that his penis was at times inside your labia majora. Am I correct about that?
A. Yes.
Q. Are you able to say how far inside your labia majora his penis was, or is that something that you can't answer?
A. It wasn't very far. It was, like, just hardly reaching that.”
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Counsel for the accused submitted that this evidence did not satisfy the definition of sexual intercourse. The Crown argued that it did.
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At the relevant time, the meaning of sexual intercourse by s 61H(1), as it was then in force, included: (a) Penetration, to any extent, of the genitalia of a female person by any part of the body by another person.
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‘Penetration’ in the statutory sense is not defined. The Crown cited a decision of the Court of Criminal Appeal in Johnson v R [2017] NSWCCA 278, which approved the trial judge's direction to the jury on the notion of ‘penetration’ in the following terms:
“you .. need to ask the question did he penetrate to any extent the female genitalia. Now, I stress the female genitalia…. He (the accused) does not actually have to penetrate her vagina. As a matter of law, the actual legal test is female genitalia. Now you have got women on your jury. I am not about to give you an anatomy lesson, except to say, obviously the female genitalia involve the outer aspects of the female vaginal cavity. So it is not whether he penetrated, ultimately the vagina itself, it is whether he penetrated the female genitalia.”
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Counsel for the accused did not cite any conflicting or competing authority on the aspect of penetration of the female genitalia. I respectfully adopt the above directions approved by the Court of Criminal Appeal but would add that the words in the provision "to any extent" suggests a broad construction of the notion of penetration of the female genitalia should be preferred.
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Taking the Crown case at its highest, in my opinion, it would be open to the jury to find that the complainant's evidence that the accused's penis was inside her labia majora constituted a penetration of her vagina, and there of the female genitalia, and thereby constituted a penetration of the vagina, and thereby satisfied the notion of penetration of the female genitalia, and, therefore, that the element of sexual intercourse would be made out.
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The application for a directed verdict on count 6 is refused.
Count 10
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An essential element of this count is that the accused's intentional touching of the complainant was ‘sexual’.
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In her original evidence given (on 13 March 2023 at T.69.1, which was replayed at this trial) the complainant said the following:
“And dad had came up to me without saying anything and he stood next to the bedside table, and he put his pants down.
Q. Sorry, what did you say? It's probably my hearing. Did you say he pulled his pants down?
A. Yes.
Q. He pulled his pants down and, then, what happened?
A. He was trying to towards I think trying to touch my chest, but my hands were in the way.
Q. You said that he was trying to touch your chest, but your hands were in the way. I take it your hands were on your chest?
A. Yes.
Q. When you say your chest, what part of your chest?
A. Like, on top of my breasts, just kind of crossed over.
Q. You said that you think he was trying to touch your breasts. What was he doing with his hands? Would you describe that for us?
A. He was, like, moving around, touching around, trying to feel around.
Q. Where was he trying to feel around?
A. Near on my breasts area.
Q. When he was trying to feel around your breast area, was he using one hand or two hands?
A. One hand.
Q. Where on your body was his hand touching? You said the breast area, but what could you feel on your body? Where was he touching?
A. My hand.
Q. You've told us that he took his pants down when he came into the bedroom and stood near your bedside table, I think was the phrase that you used. What did he do next? What else do you remember?
A. I remember that one of his hand the other hand was on his penis.
Q. So his hand was on his penis. What did you see?
A. He was moving his hand well, his hand on the penis was, like, stroking.
Q. How far away was his penis from you when he was stroking his penis?
A. It was next to me.
Q. Are you able to say how far or maybe indicate with your hands, if that's easier for you?
A. It was kind of, like, here.
Q. Could you show us the distance just by holding your hands like this or any distance that is accurate?
CROWN PROSECUTOR: Your Honour, for the record, 20 centimetres.
HIS HONOUR: Are you content with that estimate, Ms Hogan?
HOGAN: Yes, I agree with that.
HIS HONOUR: It will be noted for the record, 20 centimetres was identified by the complainant.
CROWN PROSECUTOR
Q. So you've indicated that he was moving his hand up and down on his penis and it was a short distance my phrase away from your face. How long did he use his hand on his penis for?
A. Um
Q. You don't have to be precise, but if you could give us your best recollection about how long that went on for? Seconds, minutes, something else?
A. I'd say a couple minutes.
Q. Again, might be my hearing. Did you say a couple of minutes?
A. Yes.
Q. How did that come to an end? How did that finish? What happened?
A. Well, he was never able to move my hands and he put up his hands and left the room. And if I recall, he went to the bathroom.
Q. Again, why do you think he went to the bathroom?
A. Because after a couple seconds, maybe a minute, he flushed the toilet.
Q. So after he left, you heard the toilet flush?
A. Yes.”
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Counsel for the accused submitted that the evidence of the complainant rose no higher than the fact that the accused had touched the complainant's hand or hands. He did not actually touch her breasts. The element of sexual touching could not be made out.
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‘Sexual touching’ is an expression to find in s 61HB(1) of the Crimes Act. Sexual touching includes touching another person with any part of the body in circumstances where a reasonable person would consider the touching to be sexual.
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Section 61HB(2) provides a list of mandatory matters that the trier of fact has to consider whether a reasonable person would consider touching to be sexual. These include the part of the body touched, including a female's breasts, whether or not the breasts are sexually developed; whether the person doing the touching did so for the purpose of obtaining sexual arousal or sexual gratification; was there any other aspect of the touching including the circumstances in which it was done which made it sexual.
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The accused's submissions obscure the context of the touching in a way which is plainly antithetical to the statutory definition of sexual touching. The notion is not narrowly based (relevantly) upon actual touching of a female's breasts or any other sexual organ of the female. Any part of the body may be touched so long as the trier of fact determines that the touching occurred where a reasonable person would consider it be sexual, according to the mandatory listed matters identified in s 61HB(2). It would plainly be relevant to the jury's consideration that although it was only the complainant's hands which were touched, that was only so because it was the complainant's hands which were covering or perhaps protecting her breasts (the complainant gave some evidence that she was only pretending to be asleep and was determined to resist the accused's attempts to move her hands). It was also plainly relevant that, at or about a time contemporaneous to the touching of the hands (and necessarily in very close spatial proximity to the complainant) that, according to the complainant, the accused was masturbating himself. It is open to the jury to infer a temporal connection between his touching of the complainant's hands covering her breasts and his masturbating himself "for the purpose of obtaining sexual arousal or sexual gratification".
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The application for directed verdict in relation to count 10 is also refused.
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Decision last updated: 12 April 2023
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