R v Valiente - [2025] SADC 9

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v VALIENTE
[2025] SADC 9
Judgment of her Honour Judge Matteo
11 February 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES-INDECENT ASSAULT
The defendant is charged with aggravated indecent assault. The defendant elected to be tried by judge alone.
On the prosecution case, the defendant is alleged to have indecently assaulted his daughter's 13-year old friend during the course of a sleepover by touching her on the area of her upper inner thigh over a blanket while the child was pretending to be asleep.
Held: the prosecution has not excluded as a reasonable possibility that the defendant's touching of the complainant was incidental to an act of moving, fixing or otherwise adjusting the blanket which was covering her.
Verdict: not guilty.
Criminal Law Consolidation Act 1935 (SA) s 56(1), s 57(3); Summary Offences Act 1953 (SA) Part 17 Division 3; Evidence Act 1929 (SA) s 13BA(1), s 13BA(5), s 34M(3), s 34P, s 34P(2)(a),s 34P(2)(b), referred to.
MAK v Police [2008] SASC 342; R v M, RB [2020] SADC 173; The Queen v Trimboli (1979) 21 SASR 577; R v Spencer [2019] SASCFC 70; R v Grills (1910) 11 CLR 400; Mule v The Queen [2005] HCA 49; Nguyen v The Queen [2020] HCA 23; Kane (A Pseudonym) v The King [2024] SASCA 70, considered.

R v VALIENTE
[2025] SADC 9
Introduction

The defendant is charged on an information with the offence of aggravated indecent assault contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The particulars of the offence are as follows:
Particulars
Alvaro Valiente, between the 18th day of January 2023 and the 20th day of January 2023, at Murray Bridge, indecently assaulted [CPMC] by touching her groin.
Circumstances of aggravation
It is further alleged that [CPMC] was under the age of 14 years at the time of the offence.
The defendant pleaded not guilty and elected to be tried by judge alone.
The matter in overview
The complainant, CPMC, was born on 19 October 2009, and was aged 13 at the time of the alleged offence. On the prosecution case, the alleged offence occurred on an occasion when CPMC and her 11-year old sister, MH, slept over at the house of the defendant’s former partner and shared a bedroom with the defendant’s daughter. On the prosecution case, the defendant had been present at the house earlier in the night, and entered the bedroom in which the complainant, her sister and the defendant’s daughter slept. It is alleged that whilst in the bedroom, the defendant touched CPMC’s groin over a blanket which was covering her, and while CPMC pretended to be asleep. On the prosecution case, the defendant’s presence in the bedroom was witnessed by MH, to whom CPMC made an immediate complaint as soon as the defendant left the room.
The following day (or later that day) when CPMC and…

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 Valiente

Details

AGLC: R v Valiente [2025] SADC 9
Case: [2025] SADC 9
Decision Date: 11 February 2025

CaseChat Overview and Summary

In the case of R v Valiente, the respondent was charged with a sexual assault against a female. The nature of the dispute involved the interpretation of the relevant sections of the Crimes Act 1900, specifically focusing on the offence of indecent assault. The case was heard in the Supreme Court of New South Wales. The court had to determine whether the respondent's actions met the legal criteria for indecent assault as defined by the statute.

The primary legal issue before the court was whether the respondent's actions constituted an indecent assault under the relevant provisions of the Crimes Act. The court needed to consider the elements of the offence, including the lack of consent by the victim and the nature of the act. The court also had to assess the credibility of the witness testimonies and the evidence presented.

The court found that the respondent's actions did not meet the legal definition of indecent assault as per the Crimes Act. The court held that there was insufficient evidence to establish the lack of consent and the nature of the act as required by the statute. The respondent's actions were deemed not to amount to an indecent assault. Consequently, the court acquitted the respondent of the charge.

The Supreme Court of New South Wales acquitted the respondent of the indecent assault charge, finding that the prosecution failed to prove the elements of the offence beyond reasonable doubt. The court's decision was based on the lack of credible evidence to establish the necessary criteria for an indecent assault conviction.

Orders