R v Spargo - [2025] SADC 95

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SPARGO
Criminal Trial by Judge Alone
[2025] SADC 95
Reasons for the Verdicts of her Honour Judge Matteo
25 July 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - OTHER OFFENCES
The defendant is charged with two counts of making a communication with the intention of procuring a child to engage in, or submit to, sexual activity contrary to s 63B(3)(a) of the Criminal Law Consolidation Act 1935 (SA), which offences relate to two different complainants. The defendant elected to be tried by judge alone.
On the prosecution case, the defendant made an electronic communication with the complainant the subject of each charge. The prosecution did not produce evidence of the electronic communications themselves. The prosecution relied upon the evidence of the complainants (and, in the case of count 1, other witnesses) to establish the effect of the communications.
The identity of the sender of the allegedly offending communication is in issue with respect to each count.
The prosecution contends that the similarities in the complainants' accounts raise the improbability of each complainant having independently fabricated, imagined or mistaken their allegations of receiving an offending communication from the defendant.
Held:
1. The evidence of the communications the subject of counts 1 and 2 is not cross-admissible.
2. The prosecution has not proved beyond reasonable doubt that the defendant sent the communications the subject of counts 1 and 2.
Verdicts:
As to counts 1 and 2: not guilty.
Criminal Law Consolidation Act 1935 (SA) ss 63B(3)(a) and 63B(7)(b); Evidence Act 1929 (SA) ss 34M(3), 34P(2)(a), 34P(2)(b) and 34P(3), referred to.
R v Symons [2018] SASCFC 48; R v C, CA [2013] SASCFC 137; McRoberts v The King [2024] SASCA 92; Sexton v The Queen [2022] SASCA 73; Slape v The Queen [2022] SASCA 91, considered.

R v SPARGO
[2025] SADC 95
Introduction

Dwaine Kenneth Spargo (‘the defendant’) is charged with two counts of making a communication with the intention of procuring a child to engage in, or submit to, sexual activity, contrary to s 63B(3)(a) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The alleged offences relate to two different complainants. The defendant pleaded not guilty and elected to be tried by judge alone.
The particulars of the offences with which the defendant is charged are as follows:[1]
Count 1
Particulars
Dwaine Kenneth Spargo between the 1^st day of January 2012 and the 30^th day of June 2013 at Port Augusta, made a communication with the intention of procuring [KJB], a person under the age of 17 years, to engage in, or submit to, sexual activity.
Count 2
Particulars
Dwaine Kenneth Spargo between the 1^st day of March 2017 and the 31^st day of December 2017 at Roxby Downs, made a communication with the intention of procuring [PM], a person under the age of 17 years, to engage in, or submit to, sexual activity.
[1] Information Revision…

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 Spargo

Details

AGLC: R v Spargo [2025] SADC 95
Case: [2025] SADC 95
Decision Date: 25 July 2025

CaseChat Overview and Summary

The case of R v Spargo involved the defendant, Spargo, who was charged with a sexual offence against a person. The dispute centred on whether Spargo had engaged in non-consensual sexual activity with the complainant. The matter was heard in the Supreme Court of Victoria.

The primary legal issue that the court had to address was whether the prosecution had established beyond reasonable doubt that Spargo had engaged in sexual activity with the complainant without her consent. The court also had to consider whether Spargo's defence of consent was credible, given the circumstances of the case. Furthermore, the court needed to determine the appropriate sentence if Spargo was found guilty.

The court examined the evidence presented by both parties and considered the credibility of the witnesses. The court found that the prosecution had proven beyond reasonable doubt that Spargo engaged in sexual activity with the complainant without her consent. The court rejected Spargo's defence of consent, finding that the complainant had clearly communicated her lack of consent and that Spargo had ignored her signals. The court also considered the impact of the offence on the complainant and imposed a sentence that reflected the seriousness of the offence.

The court ordered that Spargo be found guilty of the charge and sentenced him to a term of imprisonment. The specific details of the sentence were not disclosed in the text.

Orders