The Queen v Soran Shero - [2013] ACTSC 31

THE QUEEN v SORAN SHERO
[2013] ACTSC 31 (1 March 2013)

CRIMINAL LAW – General Matters – two charges of sexual intercourse without consent – judge-alone trial – whether sexual intercourse took place – whether there was consent – whether accused knew of absence of consent or was reckless about consent – elements of offences not established beyond reasonable doubt – accused not guilty of either offence.

Evidence Act 1995 (Cth), s 165

Crimes Act 1900 (ACT), ss 50(1), 54(1) and 54(3)
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 43 and 46
Supreme Court Act 1933 (ACT), s 68C

Fleming v The Queen (1998) 197 CLR 250
R v Rao [2008] ACTSC 17

No. SCC 382A of 2009

Judge: Penfold J
Supreme Court of the ACT

Date: 1 March 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCC 382A of 2009
AUSTRALIAN CAPITAL TERRITORY           )

R

v

SORAN SHERO

ORDER

Judge:  Penfold J
Date:  1 March 2013
Place:  Canberra

THE COURT ORDERS THAT:

On Count 1, that on 7 June 2009 Soran Shero engaged in sexual intercourse with the complainant without the complainant’s consent and being reckless as to whether she had consented – a verdict of not guilty be entered.

On Count 2, that on 7 June 2009 Soran Shero engaged in sexual intercourse with the complainant without the complainant’s consent and being reckless as to whether she had consented – a verdict of not guilty be entered.

Introduction

Soran Shero has been charged with two counts of engaging in sexual intercourse with the complainant without her consent and being reckless as to whether she had consented, allegedly committed on 7 June 2009.

The charges arose under s 54(1) of the Crimes Act 1900 (ACT). Under s 50(1) of the Crimes Act, sexual intercourse includes digital penetration of a person’s vagina. Under s 54(3) of that Act, recklessness as to consent can be established by proving knowledge of an absence of consent.

The accused pleaded not guilty to both of the charges.

Judge-alone trials

Election

The accused elected to be tried by a judge alone.

Section 68C of the Supreme Court Act 1933 (ACT) specifies the procedures to be followed for a trial by judge alone. In summary:

(a)the judge can make any findings of guilt that could have been made by a jury, and those findings have the same effect as jury verdicts;
(b)the judge must provide a judgment setting out the principles of law he or she applied and the findings of fact he or she relied on (this requirement has been interpreted as requiring the judge to set out also the reasoning process linking the law and the facts, and a justification for the verdict, Fleming v The Queen (1998) 197 CLR 250); and
(c)the judge must take into account any warnings or directions that would, under a Territory law (which for this purpose includes the Evidence Act 1995 (Cth), applicable at the time of this trial), have had to be given,…

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 Soran Shero

Details

AGLC: The Queen v Soran Shero [2013] ACTSC 31
Case: [2013] ACTSC 31
Decision Date

CaseChat Overview and Summary

In this case, Soran Shero was charged with two counts of engaging in sexual intercourse with a complainant without her consent and being reckless as to whether she had consented, allegedly committed on 7 June 2009. The case was tried by a judge alone. The key issue in the trial was the nature and circumstances of the sexual encounter between the complainant and Soran Shero. The court found that the complainant's evidence was less than convincing, given her inability to provide any details of the alleged assault or its mechanics. Furthermore, the complainant's assertions about the nature of her interaction with Soran Shero in ICBM were inconsistent with Soran Shero's claims made to police and the evidence of Ms Baxter. The court concluded that there were reasonable doubts about the complainant's version of events, and thus could not be satisfied beyond reasonable doubt that the alleged sexual activity took place, that the complainant did not consent, or that Soran Shero knew she did not consent or was reckless about her consent. Verdicts of not guilty were entered on both counts.

In summary, the court found that Soran Shero was not guilty of the charges of engaging in sexual intercourse with the complainant without her consent and being reckless as to whether she had consented on both counts. The court based its decision on the complainant's unconvincing evidence, inconsistencies in her account, and the existence of reasonable doubt about the alleged events.

Orders