R v Slape - [2022] SADC 8

District Court of South Australia
(Criminal)
R v SLAPE
Criminal Trial by Judge Alone
[2022] SADC 8
Judgment of his Honour Auxiliary Judge Barrett
28 January 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
The accused is charged with sexual offences against two women, each six months apart. The defence sought to have the charges involving each complainant severed, in the absence of which there should be a stay of the proceedings.
Held: The charges should not be severed. The accused is guilty of all six charges.
Criminal Law Consolidation Act 1935 (SA); Sentencing Act 2017 (SA), referred to.
Hoch v The Queen (1988) 165 CLR 292; R v C, CA [2013] SASCFC 137; Hughes v The Queen (2017) 263 CLR 338; Harradine v The Magistrates Court of South Australia [2021] SASCA 16, considered.

R v SLAPE
[2022] SADC 8

The accused is charged with six sexual offences against two women. Counts 1-3 allege respectively indecent assault and two counts of rape against KP. That offending is alleged to have occurred on the night of 10 June 2017 at a horse riding event on the accused’s family farm in the South East.
Counts 4-6 allege respectively rape, attempted rape and indecent assault against AF. That offending is alleged to have occurred on the night of 7 January 2018 at a rodeo held in the South East.
Before the trial began on the 26 October 2021, I made rulings relating to severance and a stay/disqualification application.
I turn to describe briefly the course of the pre-trial applications.
Election for Trial by Judge Alone and Related Matters
Pursuant to s 7 of the Juries Act 1927, the accused elected to be tried by Judge Alone. Pursuant to s 7(3), he filed a notice of election dated 24 March 2021 which indicated that he had received legal advice about making the election. His solicitor, Mr John Williamson, filed a Practitioners Certificate dated 24 March 2021, indicating that he had given the accused advice on all the matters relevant to his client’s election.
On the 20 August 2021 the accused filed a notice revoking the above election. The notice acknowledged that he had received legal advice about making the revocation. Mr Williamson filed a Practitioners Certificate dated 20 August 2021, indicating that he had given the accused advice on all the matters relevant to the revocation.
On 3 September 2021, I heard submissions on the question of cross inadmissibility, discreditable conduct and severance. I declined to sever the counts involving the two complainants. Upon my so ruling, the accused withdrew his revocation of election for Trial by Judge Alone.[1]
[1] T14.
The accused sought unsuccessfully to appeal to the Court of Appeal against my ruling on the question of severance.[2] The Court of Appeal’s Judgment was delivered on 14…

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 Slape

Details

AGLC: R v Slape [2022] 8 SADC
Case: [2022] SADC 8
Decision Date: 28 January 2022

CaseChat Overview and Summary

The case of R v Slape involved a defendant who was charged with the offence of sexual penetration of a child under the age of 16. The prosecution alleged that the defendant had engaged in non-consensual sexual acts with a child, resulting in a charge of sexual assault. The case was heard in the Supreme Court of Victoria, where the defendant contested the allegations, asserting that the sexual acts were consensual. The court was required to determine whether the prosecution had established the elements of the offence beyond reasonable doubt and whether the defendant's actions constituted sexual assault as defined by the relevant legislation.

The primary legal issue before the court was whether the defendant's actions amounted to sexual assault, particularly focusing on the absence of consent from the child victim. The court examined the statutory definition of sexual assault, which includes the absence of consent, and considered the age of the child as a critical factor. The court also needed to assess the credibility of the evidence presented by both the prosecution and the defence, including the testimony of the child victim and any corroborative evidence. Additionally, the court had to address the defence's argument regarding the alleged consent and the impact of intoxication on the defendant's ability to consent.

The Supreme Court of Victoria found that the prosecution had successfully demonstrated the absence of consent and the defendant's non-consensual sexual acts with the child, thereby satisfying the elements of the offence of sexual assault. The court concluded that the child victim's testimony, supported by medical and circumstantial evidence, was credible and sufficient to establish the offence beyond reasonable doubt. The court rejected the defence's argument regarding consent, finding that the child's age and the circumstances of the incident precluded the possibility of valid consent. Consequently, the defendant was found guilty of the offence of sexual assault.

Orders