R v Smith (a pseudonym) - [2020] ACTSC 142

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Smith (a pseudonym)
Citation:	[2020] ACTSC 142
Hearing Dates:	28 April – 1 May 2020
DecisionDate:	4 June 2020
Before:	Mossop J
Decision:	The accused is guilty on counts 1, 2 and 3 on the indictment.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial by judge alone – sexual intercourse without consent – act of indecency – accused and complainant were young persons – previous consensual sexual activity – strong complaint evidence – guilty on all counts
Legislation Cited:	Crimes Act 1900 (ACT), ss 50, 54, 60 Criminal Code 2002 (ACT), s 712A Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 57, 64, 74, 80B, 80C Supreme Court Act 1993 (ACT), ss 68B, 68C
Cases Cited:	Banditt v The Queen [2005] HCA 80; 224 CLR 262 R v Stevens (No 2) [2017] ACTSC 296
Parties:	The Queen (Crown) John Smith (Accused)
Representation:	Counsel S Saikal-Skea (Crown) S Whybrow (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused)
File Number:	SCC 170 of 2019

MOSSOP J:

Introduction

This is a criminal case involving allegations against a young man who was 17 years old at the time of the incident giving rise to the charges.

The accused is charged with three counts. Count 1 alleges an act of indecency contrary to s 60(1) of the Crimes Act 1900 (ACT). Counts 2 and 3 are counts alleging sexual intercourse without consent contrary to s 54(1) of the Crimes Act.

The complainant was also 17 years old at the time of the incident giving rise to the charges.

In order to protect the identity of the complainant (Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act) s 74) and the accused (Criminal Code 2002 (ACT) s 712A), persons and places referred to in these reasons have been anonymised by the substitution of different names in these reasons and where names appear in the evidence. The key to the anonymisation is contained in a schedule to these reasons, which will be provided to the parties, kept on the court file and not published on the internet.

Overview of the Crown case

The Crown alleges that on 27 April 2018 the complainant, Mary Jones, picked up the accused, John Smith, from an 18^th birthday party that he was attending in Barton. She was to drive him home. The accused asked if they could stop at an oval on the way. The complainant parked the car in a car park next to the oval. The accused got out of the car and chased kangaroos which had been grazing on the oval. Both young persons returned to the car and engaged in consensual sexual activity in the back seat of the complainant’s car.

At one point, the accused asked if he could give the complainant oral sex. She said no. The young person opened the complainant’s legs and moved down as if he was going to do it. The…

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 Smith (a pseudonym)

Details

AGLC: R v Smith (a pseudonym) [2020] ACTSC 142
Case: [2020] ACTSC 142
Decision Date: 4 June 2020

CaseChat Overview and Summary

In the case of R v Smith, the defendant faced charges of sexual intercourse without consent and an act of indecency involving a young person. The trial took place in a court of summary jurisdiction, where the accused was tried by a judge alone without a jury. The complainant, also a young person, provided strong evidence of the non-consensual acts, which included previous consensual sexual activity that was used by the defendant to justify the later incidents.

The primary legal issues addressed by the court were whether the defendant's prior consensual relationship with the complainant could be used as a defence against the charges of sexual intercourse without consent and indecency. The court had to consider the nature of consent and the legal principles that govern sexual offences involving young persons. It was also necessary to determine the weight and credibility of the complainant's testimony, as well as the defendant's reliance on previous consensual acts as justification for subsequent non-consensual acts.

The court concluded that the defendant's reliance on previous consensual sexual activity did not negate the lack of consent in the incidents in question. The judge found the complainant's evidence to be compelling and consistent, and determined that the acts of sexual intercourse and indecency were committed without her consent. The court emphasised the importance of obtaining clear and unambiguous consent for each sexual act and rejected the defendant's argument that past consensual activity could be used as a blanket defence for future non-consensual acts. Consequently, the accused was found guilty on all counts of the indictment.

The final orders of the court were that the accused was guilty on counts 1, 2, and 3 of the indictment, relating to sexual intercourse without consent and an act of indecency involving a young person. Sentencing is to be determined in a subsequent hearing.

Orders

Orders of the court

The accused is guilty on counts 1, 2 and 3 on the indictment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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