R v Foster [2021] NSWDC 725

R v Foster [2021] NSWDC 725

After applying the criminal standard of proof and the required evidentiary warnings, the judge accepted the complainant's essential evidence on counts 1, 2, 3, 4, 5 and 8. The forensic evidence of the accused's semen on the complainant's breast area and singlet, immediate complaint evidence, the complainant's conduct in preserving the singlet for DNA, evidence about extra cigarettes and the lighter, bruising near the complainant's breasts, and rejection of key parts of the accused's account supported proof beyond reasonable doubt of those counts. The judge was left with a reasonable doubt on counts 6 and 7 because the penetration allegations were less clearly and consistently supported,...

Jurisdiction
Australia
Judgment Date
27 August 2021
Procedural Posture
Criminal Prosecution for Sexual Offences Against a Person With a Cognitive Impairment / Judge Alone Trial; Judgment on Verdict
Outcome
Counts 1, 2, 3, 4, 5 and 8 proved beyond reasonable doubt; accused convicted on those counts. Counts 6 and 7 not proved beyond reasonable doubt; accused found not guilty on those counts.
Legal Topics
['sexual Touching of Person With Cognitive Impairment' 'sexual Act Towards Person With Cognitive Impairment' 'sexual Intercourse With Person With Cognitive Impairment' 'judge Alone Trial' 'complaint Evidence' 'delay in Complaint' 'context Evidence' 'tendency Evidence' 'right to Silence' 'good Character Evidence' 'expert Evidence' 'standard of Proof']
['criminal Law' 'evidence' 'criminal Procedure'] ['sexual Touching of Person With Cognitive Impairment' 'sexual Act Towards Person With Cognitive Impairment' 'sexual Intercourse With Person With Cognitive Impairment' 'judge Alone Trial' 'complaint Evidence' 'delay in Complaint' 'context Evidence' 'tendency Evidence' 'right to Silence' 'good Character Evidence' 'expert Evidence' 'standard of Proof']

Case Brief

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Procedural Posture

Criminal Prosecution for Sexual Offences Against a Person With a Cognitive Impairment / Judge Alone Trial; Judgment on Verdict

Legal Issues

  1. 1 ['Whether the Crown proved beyond reasonable doubt that the accused sexually touched the complainant as alleged in counts 1, 2, 3, 4 and 8.' 'Whether the Crown proved beyond reasonable doubt that the accused carried out a sexual act towards the complainant as alleged in count 5.' 'Whether the Crown proved beyond reasonable doubt that the accused had sexual intercourse with the complainant by penile/vaginal and oral penetration as alleged in counts 6 and 7.' "Whether the complainant's evidence was sufficiently credible and reliable despite her mental health issues, cognitive impairment, hallucinations and inconsistencies." "Whether evidence of the accused's sexual interest in the complainant, or any tendency evidence, could be used in assessing the counts."]

Ratio Decidendi

After applying the criminal standard of proof and the required evidentiary warnings, the judge accepted the complainant's essential evidence on counts 1, 2, 3, 4, 5 and 8. The forensic evidence of the accused's semen on the complainant's breast area and singlet, immediate complaint evidence, the complainant's conduct in preserving the singlet for DNA, evidence about extra cigarettes and the lighter, bruising near the complainant's breasts, and rejection of key parts of the accused's account supported proof beyond reasonable doubt of those counts. The judge was left with a reasonable doubt on counts 6 and 7 because the penetration allegations were less clearly and consistently supported,...

Court Disposition

Counts 1, 2, 3, 4, 5 and 8 proved beyond reasonable doubt; accused convicted on those counts. Counts 6 and 7 not proved beyond reasonable doubt; accused found not guilty on those counts.

Orders

  • ['I find counts 1, 2, 3, 4, 5 and 8 proved beyond reasonable doubt and I convict the accused of those matters.' 'I find the accused not guilty in relation to counts 6 and 7.']