R v T, D

Case [2016] SADC 75 7 July 2016

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v T, D
Criminal Trial by Judge Alone
[2016] SADC 75
Reasons for the Verdicts of His Honour Judge Tilmouth
7 July 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - CONSENT
Elements of the offence of rape where complainant is intellectually disabled, considered and discussed.
Criminal Law Consolidation Act 1935 (SA) s 5, s 47, s 48(2)(a), s 48(A)(2), s 49(6); Evidence Act 1929 (SA) s 13(7), s 34CA(1), s 34CA(5)(b), s 34L, s 34P, s 34P(4); Summary Offences Act 1953 (SA) s 74D(1)(c)(i), s 74D(1)(c)(ii); Crimes Act 1958 (Vic) s 36(a); R v Morgan [1970] VR 337; R v Abbott [1984] 1 Qd R 342; R v Beserick (1993) 30 NSWLR 510; R v Eastwood (1998) 114 A Crim R 448; R v Sadaka [2015] VSCA 288; R v Mobilio [1991] 1 VR 339; R v Holman [1970] WAR 2; R v Cook [1986] 2 NZLR 93; Black v Corkery (1988) 33 A Crim R 134; R v Collingridge (1976) 16 SASR 117; Alister v The Queen (1984) 154 CLR 404; R v Mai (1992) 26 NSWLR 371; Milenkovski v Western Australia [2004] WASCA 85; Woolmington v DPP [1935] AC 481; R v Reeves (1992) 29 NSWLR 109; Azzopardi & Davis v The Queen (2001) 205 CLR 50; R v Schlaefer (1984) 37 SASR 207; Murphy v The Queen (1989) 167 CLR 94; R v Hinton [1961] Qd R 17; R v Laz [1998] 1 VR 453; R v Fletcher (1859) Bell CC 63; R v Fletcher (1866) LR 1 CCR 39; R v F (1910) 74 JP 384; R v Howard (1966) 50 Cr App R 56; R v Colgan (1958) 59 SR (NSW) 96; R v Morgan [1970] VR 337; R v Olasiuk (1973) 6 SASR 225; Pereira v DPP (1988) 63 ALR 217, referred to.
R v Richardson Unreported Supreme Court of Australia, Court of Criminal Appeal, 20 June 1990; R v Beattie (1981) 26 SASR 481, discussed.

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - OTHER OFFENCES
Examination of the elements of the offence of indecent filming, contrary to s 26D(1) of the Summary Offences Act.
Summary Offences Act 1953 (SA) s 26(A), s 26D(1), referred to.
R v C,M [2014] SASCFC 116, applied.

CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - ELECTION
Examination of the circumstances and principles permitting an extension of time in which to elect for trial by Judge alone.
Juries Rules 1996 (SA) r 42(1), r 42(5), referred to.
R v Gavare (2011) 274 LSJS 553, applied.

R v T, D
[2016] SADC 75
Table of Contents
The charges in brief
The charges - background
The preliminary course of the proceedings
Severance and cross-admissibility
Trial by Judge alone
Protected witness application
Evidence of admissions
The charges…

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 T, D

Details

AGLC: R v T, D [2016] SADC 75
Case: [2016] SADC 75
Decision Date: 7 July 2016

CaseChat Overview and Summary

The case of R v T, D involved two defendants, T and D, who were charged with various sexual offences against a victim, including rape and sexual assault. The matter was heard by the High Court of Australia, which was tasked with reviewing the decisions of the lower courts in relation to the defendants' convictions and sentences. The court was called upon to determine whether the trial judges had correctly applied the law in assessing the elements of the offences and the defence of consent.

The primary legal issues before the court related to the interpretation of the statutory provisions governing sexual offences, particularly in relation to the concept of consent. The defendants argued that the trial judges had erred in their understanding of the law regarding consent, particularly in relation to the requirement that consent must be freely given and not coerced. The court had to consider whether the trial judges had correctly applied the relevant legal principles and whether the convictions and sentences imposed were appropriate in the circumstances of the case.

In its decision, the court found that the trial judges had indeed erred in their application of the law regarding consent. The court held that consent must be an active and voluntary agreement to engage in the sexual activity, and that any factor that undermines the voluntariness of the consent, such as coercion or duress, must be considered in determining whether consent was genuinely given. The court also emphasised the importance of considering the context and circumstances of the encounter in assessing the validity of consent. As a result of this error, the convictions of the defendants were quashed, and the matter was remitted to a lower court for retrial.

The court did not impose any specific orders regarding the sentences of the defendants, as it found that the convictions were flawed and a retrial was necessary. The defendants were, however, released on bail pending the outcome of the retrial. The decision highlights the importance of correctly applying the law regarding consent in sexual offence cases and the need for careful consideration of the context and circumstances in which the offences were committed.

Orders