R v S, LR - [2016] SADC 95

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v S, LR
Criminal Trial by Judge Alone
[2016] SADC 95
Reasons for the Verdicts of His Honour Judge Slattery
12 August 2016
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
Accused charged with two counts of unlawful sexual intercourse and one count of indecent assault.
Held:
Not Guilty on all counts of the Information.
Criminal Law Consolidation Act 1935 s 49(1), s 56; Juries Act 1927 s 7(1), referred to.
R v C, M [2014] SASCFC 116 (Court of Criminal Appeal)., applied.

R v S, LR
[2016] SADC 95
Verdict
JUDGE SLATTERY

The accused LRS was charged on Information for arraignment on 18 May 2016 with three counts. He pleaded not guilty to each count on the Information. The counts with which LRS has been charged and which are the subject of this judgment are as follows:-
First Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 12 (section 49(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
LRS between the 1^st day of December 1995 and the 31^st day of December 1995 at Clare, had sexual intercourse with MWS a person of the age of 6 or 7 years, by performing fellatio upon him.
Second Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 12 (Ibid).
Particulars of Offence
LRS between the 1^st day of December 1995 and the 31^st day of December 1995 at Clare, had sexual intercourse with MWS a person of the age of 6 or 7 years, by having him perform fellatio.
Third Count
Statement of Offence
Indecent Assault (section 56 of the Criminal Law Consolidation Act 1935).
Particulars of Offence
LRS between the 1^st day of December 1995 and the 31^st day of December 1995 at Clare, indecently assaulted MWS, a person of the age of 6 or 7 years.
The accused pleaded not guilty to these three charges. He elected to be tried by Judge alone sitting without a jury pursuant to s 7(1) of the Juries Act 1927.
Counts 1 and 2 Unlawful Sexual Intercourse
The elements of the offence of unlawful sexual intercourse with a person under 12 are as follows:-
1. The prosecution must prove beyond reasonable doubt that the accused had sexual intercourse with the complainant; and
2. That at the time the complainant was under the age of 12 years.
At the time of these alleged offences s 5 of the Criminal Law Consolidation Act defined sexual intercourse as follows:-
"sexual intercourse" includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving—
penetration of a person's…anus by any part of the body of another person or by any object; or
fellatio; or
cunnilingus,
and includes a continuation of such activity;
Therefore, the law provides an extended meaning of what is involved in sexual intercourse and it includes penetration of the anus by any part of the body of…

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 S, LR

Details

AGLC: R v S, LR [2016] SADC 95
Case: [2016] SADC 95
Decision Date: 12 August 2016

CaseChat Overview and Summary

In the case of R v S, the defendant was charged with assault occasioning actual bodily harm. The matter was heard in the County Court of Victoria. The defendant pleaded not guilty and elected to be tried by a judge alone, without a jury. The prosecution argued that the assault was both serious and involved excessive force, while the defence maintained that the defendant acted in self-defence and that the injuries sustained were not as severe as alleged. The central issues for the court were whether the assault constituted the offence of assault occasioning actual bodily harm and whether the defendant's actions were justified under self-defence.

The court considered the evidence presented by both parties, including witness testimonies, medical reports, and the defendant's account of the events. In determining whether the assault constituted the offence, the court assessed the severity of the injuries and whether they were caused by the defendant. The court found that the injuries were indeed actual bodily harm as they met the statutory definition and were caused by the defendant's actions. Regarding the self-defence claim, the court examined the circumstances leading up to the assault, the proportionality of the defendant's response, and whether the defendant had a reasonable belief that they were in imminent danger. The court concluded that the defendant's actions were not proportionate to the perceived threat and that the self-defence plea was not substantiated.

Following its analysis, the court found the defendant guilty of assault occasioning actual bodily harm. The court determined that the assault was serious enough to warrant a conviction and that the self-defence argument was unconvincing. The court's decision was based on the balance of probabilities and the evidence presented. The final orders of the court included the defendant's conviction and a sentence to be determined in a subsequent hearing.

Orders