R v Kertz [2019] NSWDC 387

R v Kertz [2019] NSWDC 387

The accused was found not guilty on count 1 as the Crown did not prove beyond reasonable doubt that, at the time he entered the complainant's premises, he intended to indecently assault her knowing she was not consenting or being reckless as to consent. On count 2, the accused was found not guilty of the aggravated offence (with actual bodily harm), but guilty of the non-aggravated form of detaining for advantage (under s 86(1)), as the accused detained the complainant without her consent and with knowledge of lack of consent, with intent to obtain an advantage (sexual gratification), but actual bodily harm was not proved during the relevant period.

Jurisdiction
Australia
Judgment Date
27 March 2019
Procedural Posture
Criminal Trial / Verdict and Reasons (judge Alone)
Outcome
Count 1: Not guilty. Count 2: Not guilty of aggravated offence; guilty of non‑aggravated offence of detaining for advantage.
Legal Topics
['trial by Judge Alone' 'property Offences' 'enter Dwelling House With Intent' 'indecent Assault' 'aggravated Offence' 'violent Offences' 'detain for Advantage' 'alternative Verdict']
['criminal Law'] ['trial by Judge Alone' 'property Offences' 'enter Dwelling House With Intent' 'indecent Assault' 'aggravated Offence' 'violent Offences' 'detain for Advantage' 'alternative Verdict']

Case Brief

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Procedural Posture

Criminal Trial / Verdict and Reasons (judge Alone)

Legal Issues

  1. 1 ['Whether accused entered dwelling with intent to commit indecent assault' 'Whether the offence was committed in circumstances of aggravation (use of corporeal violence)' 'Whether accused detained complainant without consent with intent to obtain sexual gratification' 'Whether actual bodily harm was occasioned' 'Whether complainant consented to conduct in question' 'Whether accused had requisite intent for specific offences']

Ratio Decidendi

The accused was found not guilty on count 1 as the Crown did not prove beyond reasonable doubt that, at the time he entered the complainant's premises, he intended to indecently assault her knowing she was not consenting or being reckless as to consent. On count 2, the accused was found not guilty of the aggravated offence (with actual bodily harm), but guilty of the non-aggravated form of detaining for advantage (under s 86(1)), as the accused detained the complainant without her consent and with knowledge of lack of consent, with intent to obtain an advantage (sexual gratification), but actual bodily harm was not proved during the relevant period.

Court Disposition

Count 1: Not guilty. Count 2: Not guilty of aggravated offence; guilty of non‑aggravated offence of detaining for advantage.

Orders

  • ['Not guilty of Count 1 on the indictment.' 'Not guilty on Count 2 on the indictment but guilty of the non‑aggravated form of the offence.']