R v Sheehan No. DCCRM-01-101 - [2001] SADC 104

R v SHEEHAN
[2001] SADC 104
Chief Judge Worthington
Criminal

The accused, Paul Charles Sheehan, is charged with two counts of rape at Murray Bridge on 1 October 2000, contrary to s48 of the Criminal Law Consolidation Act 1935. The first count is that he had vaginal sexual intercourse with Brooke Amanda Kemp, the complainant, without her consent, and the second count is that he had sexual intercourse with the complainant, without her consent, by inserting his fingers into her vagina.
These two crimes are alleged to have been committed in the early hours of Sunday 1 October 2000. On the afternoon of Saturday 30 September 2000, there was an engagement party for Jamie Peter Brine and Colleen Patricia Schulz at Mr Brine’s grandfather’s house in Doecke Road, Murray Bridge.. There were about 50 or 60 guests and among them was a group whom Mr Brine and Ms Schulz had invited to stay the night at their house at 44 Ritter Street, Murray Bridge, after the party. That group comprised the complainant and her boyfriend, Donald Martin Lee, Darren James Wilson, Daniel William Kane, Jonathan Andrew Gray, Mary Jane Spykstra and the accused, who was sometimes referred to as Paul and sometimes by a nickname, “Charlie”.
I shall refer to events in more detail shortly, but late that night a group of them bedded down in the lounge of the Ritter Street house, including the accused who was on a mattress on the floor, and the complainant and Donald Lee who were on a Queen size bed. It is the Crown case that during the early hours of Sunday morning, the complainant awoke to find a man on top of her with his penis in her vagina and as she rolled away from him, he put two fingers into her vagina; and that this man was the accused.
Rape is committed when a person has sexual intercourse with another person without the consent of that other person, knowing that the other person does not consent or being recklessly indifferent as to whether the other person consents. To establish such a charge the prosecution must prove beyond reasonable doubt:
1.that the accused intentionally penetrated the complainant’s labia majora; as relevant here, in count 1 with his penis, and in count 2 with one or more of his fingers;
2. that the complainant did not consent to that sexual intercourse; and
3.that the accused knew that the complainant was not consenting or was recklessly indifferent as to whether she was consenting.
For reasons which will become apparent, there is no real issue about the second element, namely, lack of consent.
THE ENGAGEMENT PARTY AND AFTERWARDS
Evidence was given by the complainant, Mr Lee, Mr Wilson, Mr Kane, Mr Gray, Mr Brine Ms Schulz and the accused. Although there are some variations, particularly with regard to times, the picture of events before bedtime for those staying at Ritter Street is clear enough.
Donald Lee had been the complainant’s boyfriend for about…

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.

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Details

AGLC: R v Sheehan No. DCCRM-01-101 [2001] SADC 104
Case: [2001] SADC 104
Decision Date: 3 August 2001

CaseChat Overview and Summary

The case before the court was R v Sheehan, a criminal matter where the accused, Paul Charles Sheehan, was charged with two counts of rape at Murray Bridge on 1 October 2000, contrary to s48 of the Criminal Law Consolidation Act 1935. The first count was that he had vaginal sexual intercourse with Brooke Amanda Kemp, the complainant, without her consent, and the second count was that he had sexual intercourse with the complainant, without her consent, by inserting his fingers into her vagina. These two crimes were alleged to have been committed in the early hours of Sunday 1 October 2000.

The legal issues that the court was required to decide were whether the prosecution had proved beyond reasonable doubt that the accused intentionally penetrated the complainant’s labia majora, whether the complainant did not consent to that sexual intercourse, and whether the accused knew that the complainant was not consenting or was recklessly indifferent as to whether she was consenting.

The court found that the complainant's evidence that her vagina was penetrated did not withstand the necessary close scrutiny. The shortcomings identified in her evidence applied equally to each count, and therefore, the prosecution had not proved beyond reasonable doubt that the accused penetrated her vagina with either his penis or his fingers. The court found that the complainant's evidence was inconsistent and that she did not complain of any indecent incident until some time after she woke up and found someone else in the bed with her. The court also found that the evidence of flight by the accused could not be used for the purpose of inferring guilt.

Therefore, the court found the accused not guilty on count one and count two.

Orders