The Queen v Rodney Henry Wark - [2003] ACTSC 30

THE QUEEN v RODNEY HENRY WARK [2003] ACTSC 30 (6 MAY 2003)

CRIMINAL LAW – trial by judge alone – offence of act of indecency without consent knowing that victim did not consent or being reckless as to whether she consented to the commission of the act of indecency – credibility of the complainant and the accused – no immediate complaint made – character direction in circumstances where accused has no relevant convictions.

Crimes Act 1900 (ACT), s 92J

Evidence Act 1971 (ACT), s 76C

R v Calides (1983) 34 SASR 355
Melbourne v The Queen (1999) 198 CLR 1
R v Falealili (1996) 3 NZLR 644

No. SCC 104 of 2002

Judge: Gray J
Supreme Court of the ACT

Date: 6 May 2003

IN THE SUPREME COURT OF THE       )
  )          No. SCC 104 of 2002
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN
against
RODNEY HENRY WARK

ORDER

Judge:  Gray J
Date:  6 May 2003
Place:  Canberra

THE COURT FINDS THAT the accused is guilty of the offence that on the 9^th day of March 2001 at Canberra in the Australian Capital Territory, he committed an act of indecency upon Karen Eggins without her consent, knowing that she did not consent or being reckless as to whether she consented to the commission of the act of indecency.

The charges

The accused elected to have this matter tried by Judge alone. The indictment charged that on the 9^th day of March 2001 at Canberra in the Australian Capital Territory, Rodney Henry Wark committed an act of indecency upon Karen Eggins without her consent, knowing that she did not consent or being reckless as to whether she consented to the commission of the act of indecency.

The accused pleaded not guilty. He was represented by Mr R Livingston of counsel.

Trial by Judge alone

Sitting as Judge alone, I must include in my judgment the principles of law that I apply. Accordingly, I have directed myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict.

Fair trial

The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict only according to the evidence which I rule as admissible.

Burden of proof

I have reminded myself that the burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with his innocence, he does not have to prove it. It is the prosecution that has to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case.

Presumption of innocence

The accused is presumed to be…

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 The Queen v Rodney Henry Wark

Details

AGLC: The Queen v Rodney Henry Wark [2003] ACTSC 30
Case: [2003] ACTSC 30
Decision Date

CaseChat Overview and Summary

Rodney Henry Wark was charged with an act of indecency without consent, knowing that the victim did not consent or being reckless as to whether she consented to the commission of the act of indecency, in contravention of section 92J of the Crimes Act 1900 (ACT). The Supreme Court of the Australian Capital Territory heard the matter and found the accused guilty. The central issue in the case was the credibility of the complainant and the accused. The complainant alleged that the accused committed an indecent assault upon her while they were in a staff room at Pialligo. The accused denied the incident occurred. The complainant's evidence was found to be convincing and credible, whereas the accused's evidence was less impressive. The court found the charged proved and the accused guilty.

The court considered the timing of the alleged incident, the credibility of the witnesses, and the lack of significant prior convictions of the accused. The complainant's evidence was supported by certain extrinsic circumstances, such as the time she was absent and her mood when she returned. The accused's evidence was not found to be as credible, and the court was satisfied that the complainant's account could be accepted. The court found the accused guilty of the offence charged.

Orders