R v McGuire [2009] NSWDC 245

R v McGuire [2009] NSWDC 245

The accused committed the acts constituting counts 1, 2, and 3 (sexual intercourse without consent), as proved beyond reasonable doubt by the complainant's reliable evidence, supporting witnesses, and medical testimony. Count 4 (break and enter to commit a serious indictable offence) is wholly subsumed by count 1, and proceeding further on count 4 would amount to an abuse of process (double jeopardy); hence, it is stayed.

Jurisdiction
Australia
Judgment Date
04 September 2009
Procedural Posture
Criminal / Special Hearing Before Judge Alone
Outcome
Guilty of counts 1, 2, and 3; count 4 stayed as abuse of process
Legal Topics
['special Hearing' 'developmentally Delayed Accused' 'sexual Intercourse Without Consent' 'break and Enter' 'sexual Intercourse by Partial Penetration' 'abuse of Process' 'double Jeopardy' 'stay of Proceedings']
['criminal Law'] ['special Hearing' 'developmentally Delayed Accused' 'sexual Intercourse Without Consent' 'break and Enter' 'sexual Intercourse by Partial Penetration' 'abuse of Process' 'double Jeopardy' 'stay of Proceedings']

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Procedural Posture

Criminal / Special Hearing Before Judge Alone

Legal Issues

  1. 1 ['Whether the accused committed sexual intercourse without consent (counts 1, 2, 3)' "Whether the accused broke and entered the complainant's dwelling to commit a serious indictable offence (count 4)" 'Whether count 4 (break and enter) should be stayed as an abuse of process (double jeopardy)']

Ratio Decidendi

The accused committed the acts constituting counts 1, 2, and 3 (sexual intercourse without consent), as proved beyond reasonable doubt by the complainant's reliable evidence, supporting witnesses, and medical testimony. Count 4 (break and enter to commit a serious indictable offence) is wholly subsumed by count 1, and proceeding further on count 4 would amount to an abuse of process (double jeopardy); hence, it is stayed.

Court Disposition

Guilty of counts 1, 2, and 3; count 4 stayed as abuse of process

Orders

  • ['On counts 1, 2 and 3, accused found to have committed the offence charged on the limited evidence available.' 'Count 4 stayed as to proceed further would be an abuse of process.']