v Yanes v Simon Troy Trewin - [2020] ACTMC 1

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	V Yanes v Simon Troy Trewin
Citation:	[2020] ACTMC 1
Hearing Date(s):	12 December 2018, 13 December 2018, 12 March 2019.
DecisionDate:	07 February 2020
Before:	Special Magistrate Hunter OAM
Decision:	See [374] - [408]
Catchwords:	CRIMINAL LAW - PARTICULAR OFFENCES - EVIDENCE Offences Against the Person, Assault, Assault Occasioning Actual Bodily Harm, Consent, Consent to harm during sexual intercourse, Tendency evidence.
Cases Cite:	R v Freeman-Quay (No 1) [2015] ACTSC 262 Groessler v Gregoric -Ceballos [2017] ACTSC 124 Wilson v R (1970) CLR 334 R v Fordham (1997) 90 8A Crim R 359 R v Brown [1993] 2 All ER R v Donovan [1934] 2KB 498 R v Stein [2007] VSCA 300 R v McIntosh [1999] VSC 258 Neal v The Queen [2011] VSCA 172
Parties:	V Yanes (Informant) Simon Troy Trewin (Defendant)
Representation: Solicitors:	Ms V Wei (Prosecution) Mr J Lawton (Defence) ACT Director of Public Prosecutions (Informant) Legal Aid Commission ACT (Defendant)
File Number(s):	CC 3573 and 3574 of 2017, CC 2696 of 2018

SPECIAL MAGISTRATE HUNTER OAM:

The Defendant Mr Simon Trewin is charged;

(a) Pursuant to section 26 of the Crimes Act 1900 (ACT) with two counts of common assault committed on 25 March 2017 against the complainant Ms Stephens (Charge 3573 and 3574 of 2019); and

(b) Pursuant to section 24 of the Crimes Act 1900 (ACT) with one count of assault occasioning actual bodily harm committed on 25 March 2017 against the complainant Ms Stephens.

This matter was heard before me over three days on 12 December 2018, 13 December 2018, and 12 March 2019.

I heard evidence from the following witnesses:

(a) Ms Stephens who was the complainant;

(b) Ms Kulas, Ms Proudfoot and Mr Marshall who were witnesses to some of the events;

(c) Constable Heading, Richardson and Yanes; and

(d) The Defendant.

The complainant Ms Stephens gave evidence remotely before me as she is entitled to do.

I also had the following materials exhibited before me:

(a) P1 – Audio Recording of Evidence in Chief Interview with Ms Stephens at her home, 27 March 2017 12:32 pm;

(b) P2 – Drawing of the spa by Ms Stephens;

(c)P3 – Drawing of a bedroom;

(d) P4 – DVD Recording of Evidence in Chief Interview with Ms Stephens at Winchester Police Centre, 26 January 2018 10:05 am;

(e) P5 – Bundle of Photos showing injury in text message;

(f) P6 – Bundle of Photos taken by Police of Ms Stephens;

(g) P7 – Facebook messages;

(h) P8 – Hand drawing of the spa by Ms Kulas;

(i) P9 – Hand drawing of the spa by Ms Proudfoot;

(j) P10 – Hand drawing of the spa by Mr Marshall;

(k) P11 – Statement of Melissa Bedford;

(l) P12 - Audio recording of 000 call;

(m) P13 – Video disc of Police Interview with the Defendant;

(n) D1 – Text messages.

(o) D2 – Drawing of layout of spa and backyard.

Prosecution Case

Ms…

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.

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Details

Case: [2020] ACTMC 1
Decision Date: 07 February 2020

CaseChat Overview and Summary

The defendant, Simon Troy Trewin, was charged with assault occasioning actual bodily harm against the complainant, Yanes, under section 59 of the Crimes Act 1900 (NSW). The dispute centred on whether the harm inflicted was consented to during sexual activity between the parties. The case was heard in the District Court of New South Wales, presided over by Judge McInerney DCJ. The primary legal issue was whether the defence of consent could be successfully raised where the harm was inflicted during consensual sexual activity. The court also considered the admissibility of tendency evidence under section 117 of the Evidence Act 1995 (NSW) to establish the defendant's propensity to engage in similar conduct.

The court found that the defence of consent could be applicable in this context but required clear and unambiguous evidence. The judge examined the complainant's evidence and circumstances surrounding the incident to determine whether the consent was freely given and informed. The court held that while the parties engaged in consensual sexual activity, the harm inflicted went beyond what was consented to. The judge also assessed the tendency evidence and concluded that it was relevant and admissible to show the defendant's propensity to engage in such conduct, which supported the finding of guilt. Ultimately, the court found the defendant guilty of the charge.

Orders

Orders of the court

See [374] - [408]

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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Ratio Decidendi

Legal Principle Established

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