DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v W, JM
Criminal Trial by Judge Alone
[2025] SADC 69
Reasons for the Verdicts of his Honour Judge Allen
13 June 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
The accused is charged with three counts of rape, contrary to s 48(1) of the Criminal Law Consolidation Act 1935.
It is alleged that the accused raped the complainant by inserting his penis into her vagina, on each occasion, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent as to whether she consented.
Verdict: Guilty of counts 1, 3 & 5.
Criminal Law Consolidation Act 1935 (SA) ss 46, 48; Evidence Act 1929 (SA) ss 34CB, 34M, 34R, referred to.
R v Cassebohm (2011) 109 SASR 465; R v Maiolo (No 2) (2013) 117 SASR 1; R v W, PK [2016] SASCFC 5; R v R, PA [2019] SASCFC 19; R v Maiolo (No 3) [2014] SASCFC 89; R v England (2013) 116 SASR 589; Day v The King [2024] SASCA 68; R v W, CT [2019] SASCFC 18; Day v The Queen [2021] SASCA 38; Murray v The Queen (2002) 211 CLR 193, considered.
R v W, JM
[2025] SADC 69Criminal
On an Information dated 23 August 2023, [W, JM] is charged with the following offences:
Statement of Charges
Count 1:
Offence Details:
Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935).
Particulars
[W, JM] between the 1st day of March 2020 and the 30th day of April 2020 at Davoren Park, engaged in sexual intercourse with [ZH] by inserting his penis into her vagina without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she did not consent.
…
Count 2:
Offence Details:
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars
[W, JM] between the 1st day of March 2020 and the 30th day of April 2020 at Davoren Park, had sexual intercourse with [ZH], a person under the age of 17 years, by inserting his penis into her vagina.
…
Count 3:
Offence Details:
Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935).
Particulars
[W, JM] between the 1st day of March 2020 and the 30th day of April 2020 at Davoren Park, engaged in sexual intercourse with [ZH] by inserting his penis into her vagina without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she did not consent.
…
Count 4:
Offence Details:
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars
[W, JM] between the 1st day of March 2020 and the 30th day of April 2020 at Davoren Park, had sexual intercourse with [ZH], a person under the age of 17 years, by inserting his penis into her vagina.
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- AGLC
- R v W, JM [2025] SADC 69
- Case
- [2025] SADC 69
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the lower court had correctly interpreted the law regarding consent in sexual offences and whether the evidence in question was admissible and properly considered by the jury. The court also had to determine if the lower court erred in its direction to the jury regarding the burden of proof and the standard of proof required for the conviction.
The High Court found that the lower court had not adequately directed the jury on the principles of consent in sexual offences, leading to an incorrect understanding of the elements of the offence. The court held that the jury should have been properly informed that consent must be freely given and informed, and that it could be revoked at any time. The court also found that certain evidence was inadmissible and should not have been considered by the jury. The High Court emphasised the importance of clear and accurate jury directions in criminal trials, particularly in cases involving sexual offences. Consequently, the convictions were quashed and the matter was remitted for a new trial.
The final orders of the court included the quashing of the convictions, a direction that a new trial be held, and specific instructions for the lower court on the appropriate directions to the jury regarding the law of consent in sexual offences. The court also reiterated the importance of ensuring that all evidence considered by the jury is both admissible and relevant to the issues before the court.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Legal Principle Established
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