R v W, JM - [2025] SADC 69

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 69
Criminal

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 1^st day of March 2020 and the 30^th 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 1^st day of March 2020 and the 30^th 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 1^st day of March 2020 and the 30^th 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 1^st day of March 2020 and the 30^th 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.

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 W, JM

Details

AGLC: R v W, JM [2025] SADC 69
Case: [2025] SADC 69
Decision Date: 13 June 2025

CaseChat Overview and Summary

In the case of R v W, JM, the accused was convicted of sexual offences against the complainant. The dispute involved the admissibility of certain evidence and the appropriate application of the law regarding consent in sexual offences. The High Court of Australia was tasked with reviewing the decision of the lower court.

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