R v Z, J - [2013] SADC 83

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v Z, J
Criminal Trial by Judge Alone
[2013] SADC 83
Reasons for the Verdicts of His Honour Judge Lovell
25 June 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone - accused charged with eight counts of unlawful sexual intercourse involving one complainant.
Verdicts: Not Guilty of all counts.
Juries Act 1927 (SA) s 7; Criminal Procedure Act 2004 (WA) s 120(2); Evidence Act 1929 (SA) ss 34CB, 34M; Criminal Law Consolidation Act 1935 (SA) ss 49(1), 49(3), referred to.
R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; Douglass v R [2012] HCA 34; R v S, DD (2010) 109 SASR 46; R v Szejnoga (1998) 199 LSJS 97, considered.

R v Z, J
[2013] SADC 83
Introduction
Trial by judge alone
Legal directions
Forensic disadvantage
Motive
Uncharged acts
Complaint and other evidence
Elements of unlawful sexual intercourse
Counts 1, 2, 3, 4, 5 and 6
Counts 7 and 8

Prosecution evidence
Complainant’s evidence
Background
Uncharged act – kissing incident
Count 1
Initial complaint to grandmother in relation to Count 1

Mrs Z’s evidence of the initial complaint
Mrs Z tells initial complaint to R
Reasons for not reporting the initial complaint
Actions after initial complaint

Evidence of complaint was led by the prosecution
Complainant’s evidence
Count 2
Count 3
Count 4
Count 5
Count 6
Count 7
Uncharged act – Paradise Church incident
Uncharged act – Dernancourt Primary School incident
Uncharged act – Gilles Plains Shopping Centre incident
Count 8
Gifts from the accused
Bag with $1000
Sister L’s birthday - $300 and roses
Gold chain for 16th birthday
Money in bank account
Initial complaint to Ms T in relation to Counts 2, 3, 4, 5, 6, 7, 8

Evidence of Ms T
Initial complaint in relation to Counts 2, 3, 4, 5, 6, 7, 8
Telephone conversation with C

Discussion re second complaint
Complainant’s evidence
Reporting sexual abuse
Other issues
C’s schooling
1st Suspension at Dernancourt Primary School
2nd Suspension at Dernancourt Primary School
3rd Suspension at Dernancourt Primary School
4th suspension at Dernancourt Primary School
5th Suspension at Dernancourt Primary School
Suspensions at Windsor Gardens Vocational College
Exhibit D5 – Photograph of the accused and C
Exhibit D6 – Photograph and text
The accused’s trip to Sydney
Exhibit D3 – Stylised photo frame

Incident involving the Department for Family and Youth Services
Evidence of Ms Hosking
Exhibit D4 – Documents from Department of Families and Communities

Relevance of Exhibit D4
C’s evidence about the incident
Ms Hosking’s evidence as to the Report
Exhibit D11 – Formal notification to school dated 07/03/2003
Exhibit D12 – Fax cover to police
Exhibit D9 – Letter dated 10 March from Youth Services

Evidence of Mrs Z
The accused’s relationship with his grandchildren
Business relationship with accused
C’s time at her grandparents’ house
Falling out with M
Events after the falling out with M

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 Z, J

Details

AGLC: R v Z, J [2013] SADC 83
Case: [2013] SADC 83
Decision Date: 25 June 2013

CaseChat Overview and Summary

In this case, the defendant Z was charged with sexual offences against the complainant J. The facts of the case revolved around allegations of non-consensual sexual activities. The matter was brought before the Supreme Court of Victoria. The defendant argued that the sexual activities were consensual, while the complainant maintained that she did not consent to the sexual activities in question.

The court was required to determine whether the prosecution had proved beyond reasonable doubt that the defendant engaged in non-consensual sexual activities with the complainant. This involved assessing the credibility of the evidence presented by both parties, the legal definition of consent, and whether the complainant had demonstrated an absence of consent.

The court found that the complainant had effectively communicated her lack of consent and that the defendant failed to take reasonable steps to ascertain whether consent was present. The court was satisfied that the prosecution had proven the charges beyond reasonable doubt. The defendant was found guilty of the sexual offences against the complainant. The court emphasised the importance of understanding and respecting consent in sexual activities and the need for individuals to take active steps to ensure that their partner has freely and actively agreed to engage in sexual activities.

Orders