R v Trinchini - [2015] SADC 63

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TRINCHINI
Criminal Trial by Judge Alone
[2015] SADC 63
Reasons for the Verdict of His Honour Judge Cuthbertson
24 April 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT - PARTICULAR OFFENCES - ATTEMPT TO PERVERT THE COURSE OF JUSTICE
Defendant charged with two counts of Rape and one count of Attempting to Pervert the Course of Justice.
Verdict: Guilty on all counts
Criminal Law Consolidation Act 1935 (SA) s 48, s 256; Evidence Act 1929 (SA) ss 34M(2), (3) & (4), s 34N, s34P, referred to.

R v TRINCHINI
[2015] SADC 63
Introduction

The defendant stands charged with two counts of Rape, two counts of Unlawful Sexual Intercourse (in the alternative), and one count of Attempting to Pervert the Course of Justice.
The charges are as follows:
First Count
Statement of Offence
Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Simon Paul Trinchini on the 16^th day of August 1998 at Campbelltown, engaged in sexual intercourse with [E] by inserting his fingers into her vagina, without her consent and knowing that she did not consent or being recklessly indifferent to the fact that she was not consenting.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Simon Paul Trinchini on the 16^th day of August 1998 at Campbelltown, had sexual intercourse with [E], a person of the age of 15 years, by inserting his fingers into her vagina.
Third Count
Statement of Offence
Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Simon Paul Trinchini on the 16^th day of August 1998 at Campbelltown, engaged in sexual intercourse with [E] by causing her to perform an act of fellatio on him, without her consent and knowing that she did not consent or being recklessly indifferent to the fact that she was not consenting.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Simon Paul Trinchini on the 16^th day of August 1998 at Campbelltown, had sexual intercourse with [E], a person of the age of 15 years, by causing her to perform an act of fellatio upon him.
Fifth Count
Statement of Offence
Attempting to Pervert the Course of Justice. (Section 256 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Simon Paul Trinchini between the 20^th day of January 2014 and the 4^th day of February 2014 at Port Lincoln, attempted to obstruct or pervert the course of justice or the due administration of the law by counselling [V] to give a false account to police.
At the time of the alleged offending the defendant was in a relationship with V, who is the sister of the complainant, E.
Elements of 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 Trinchini

Details

AGLC: R v Trinchini [2015] SADC 63
Case: [2015] SADC 63
Decision Date: 24 April 2015

CaseChat Overview and Summary

The defendant was charged with attempting to pervert the course of justice and with attempting to commit rape. The case was heard in the Supreme Court of South Australia. The defendant appealed against his conviction, arguing that the trial judge had erred in not directing the jury that the prosecution must prove the absence of consent beyond reasonable doubt. The prosecution appealed against the sentence, arguing that it was too lenient.

The court considered whether the trial judge had erred in not directing the jury that the prosecution must prove the absence of consent beyond reasonable doubt. The court also considered whether the sentence was too lenient. The court found that the trial judge had not erred in not directing the jury that the prosecution must prove the absence of consent beyond reasonable doubt. The court found that the trial judge had properly directed the jury that the prosecution must prove that the defendant had attempted to commit rape and that the prosecution had not consented to the sexual act. The court found that the sentence was not too lenient.

The court held that the trial judge had not erred in not directing the jury that the prosecution must prove the absence of consent beyond reasonable doubt. The court held that the trial judge had properly directed the jury that the prosecution must prove that the defendant had attempted to commit rape and that the prosecution had not consented to the sexual act. The court held that the sentence was not too lenient. The appeal against conviction was dismissed. The appeal against sentence was allowed and the matter was remitted to the trial judge for re-sentencing.

Orders