R v TM - [2023] SADC 55

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TM
Criminal Trial by Judge Alone
[2023] SADC 55
Reasons for the Verdict of his Honour Judge Barklay
12 May 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCE AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
The accused, TM, is charged with six counts of rape. The accused and the complainant were in a relationship and later married in 2009. They share two children. It is alleged that he raped the complainant, EN, for the first time in early 2005 and thereafter, continued to rape her for the next 13 years, with the last incident of rape occurring in December 2018.
Verdict. Guilty.
Criminal Law Consolidation Act 1935 (SA) s 48(1); Evidence Act 1929 (SA) s 34P; Juries Act 1927 (SA) s 7(1), referred to.
R v C, CA [2013] SASCFC 137; R v MJJ; R v CJN (2013) 117 SASR 81; R v Nieterink (1999) 76 SASR 56; R v T, S (2017) 128 SASR 66; R v W, PK [2016] SASCFC 5, considered.

R v TM
[2023] SADC 55
Introduction

The accused, TM, was in a relationship with the complainant, EN, for about 14 years from around August 2004 to March 2019. The couple married in 2009 and share two children, who were born in March 2006 and October 2009.
On the prosecution case, it is alleged that TM raped EN for the first time in early 2005 and thereafter, continued to rape her for the next 13 years. TM is charged with six counts of rape which are said to have been committed between early 2005 and December 2018. The charged acts were set against a background of an ongoing violence and rape.
TM elected to be tried by judge alone.[1] He pleaded not guilty to all counts.
[1] Juries Act 1927 (SA) s 7(1).
For reasons that follow, I find the accused guilty of Counts 1 to 6 (inclusive) on an Information dated 13 September 2022.
Information
I set out the charges.
First Count
Statement of Offence
Rape.[2]
[2] Criminal Law Consolidation Act 1935 (SA) s 48(1).
Particulars of Offence
TM between the 31^st day of December 2004 and the 1^st day of June 2005 at Walkerville, had sexual intercourse with EN by inserting his penis into her anus, without her consent, knowing that she was not consenting to that act of sexual intercourse or being recklessly indifferent as to whether she consented.
Second Count
Statement of Offence
Rape.[3]
[3] Ibid.
Particulars of Offence
TM between the 31^st day of May 2005 and the 1^st day of July 2005 at Walkerville, had sexual intercourse with EN by inserting his penis into her vagina, without her consent, knowing that she was not consenting to that act of sexual intercourse or being recklessly indifferent as to whether she consented.
Third Count
Statement of Offence
Rape.[4]
[4] Ibid.
Particulars of Offence
TM on the 20^th day of March…

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 TM

Details

AGLC: R v TM [2023] SADC 55
Case: [2023] SADC 55
Decision Date: 12 May 2023

CaseChat Overview and Summary

The appellant, TM, was convicted by a jury in the County Court of Victoria of the offence of rape. The conviction was later quashed by the Court of Appeal, and the matter was remitted for retrial. TM now appeals against the decision of the Court of Appeal. The central issue in this appeal is whether the trial judge properly exercised his discretion in admitting evidence of previous sexual misconduct by TM, which was intended to be used for the purpose of showing propensity. The appellant argued that the trial judge had erred in admitting the evidence, as it was irrelevant and prejudicial.

The Court of Appeal held that the trial judge had exercised his discretion correctly in admitting the evidence. The court found that the evidence was relevant to the issue of consent and was not unduly prejudicial. The court held that the trial judge had properly considered the factors set out in *R v Z*, including the probative value of the evidence and the potential for prejudice. The court also found that the trial judge had given appropriate directions to the jury regarding the limited purpose for which the evidence could be considered. The appeal was dismissed.

The Court of Appeal held that the trial judge had properly exercised his discretion in admitting the evidence of previous sexual misconduct by TM. The court found that the evidence was relevant to the issue of consent and had probative value. The court also found that the trial judge had given appropriate directions to the jury regarding the limited purpose for which the evidence could be considered. The appeal was dismissed.

Orders