R v Callum [2023] NSWChC 7

R v Callum [2023] NSWChC 7

The aggravating feature of the s 61J(1) charges was not proved beyond reasonable doubt because the Court could not find that the young person knew the complainant was 15. Section 80AB of the Crimes Act 1900 (NSW) did not empower a Children's Court Magistrate to return an alternative verdict under s 61I because there was no express conferral of that power and the defence demonstrated a parliamentary intention to exclude it. Although the Court would otherwise have found sequence 1 made out as a s 61I offence because the complainant did not consent to digital penetration and the young person knew or was reckless as to lack of consent, that alternative verdict was unavailable. For sequence 2,...

Jurisdiction
Australia
Judgment Date
29 June 2023
Procedural Posture
Criminal Proceeding Concerning Two Charges of Aggravated Sexual Assault Contrary to S 61 J(1) of the Crimes Act 1900 (nsw) / Defended Hearing in the Children's Court; Judgment and Orders
Outcome
Sequence 1: Not guilty; Sequence 2: Not guilty
Legal Topics
['aggravated Sexual Assault' 'consent' 'sexual Intercourse' 'complaint Evidence' "alternative Verdicts in the Children's Court" 'crimes Act 1900 (nsw) S 80 Ab']
['criminal Law' 'evidence' "children's Criminal Proceedings" 'statutory Interpretation'] ['aggravated Sexual Assault' 'consent' 'sexual Intercourse' 'complaint Evidence' "alternative Verdicts in the Children's Court" 'crimes Act 1900 (nsw) S 80 Ab']

Case Brief

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Procedural Posture

Criminal Proceeding Concerning Two Charges of Aggravated Sexual Assault Contrary to S 61 J(1) of the Crimes Act 1900 (nsw) / Defended Hearing in the Children's Court; Judgment and Orders

Legal Issues

  1. 1 ['Whether the Crown proved beyond reasonable doubt that the young person committed aggravated sexual assault under s 61J(1) of the Crimes Act 1900 (NSW) in sequence 1 and sequence 2.' 'Whether the aggravating circumstance concerning the complainant being aged 15 was proved beyond reasonable doubt.' "Whether s 80AB of the Crimes Act 1900 (NSW) empowered a Children's Court Magistrate to return an alternative verdict under s 61I where the aggravating feature of s 61J(1) was not proved." "Whether digital penetration in sequence 1 occurred without consent and with the young person's knowledge or recklessness as to lack of consent." 'Whether penile-vaginal penetration in sequence 2 was proved beyond reasonable doubt.']

Ratio Decidendi

The aggravating feature of the s 61J(1) charges was not proved beyond reasonable doubt because the Court could not find that the young person knew the complainant was 15. Section 80AB of the Crimes Act 1900 (NSW) did not empower a Children's Court Magistrate to return an alternative verdict under s 61I because there was no express conferral of that power and the defence demonstrated a parliamentary intention to exclude it. Although the Court would otherwise have found sequence 1 made out as a s 61I offence because the complainant did not consent to digital penetration and the young person knew or was reckless as to lack of consent, that alternative verdict was unavailable. For sequence 2,...

Court Disposition

Sequence 1: Not guilty; Sequence 2: Not guilty

Orders

  • ['Sequence 1: Not guilty' 'Sequence 2: Not guilty']