R v CP [2022] NSWDC 125

R v CP [2022] NSWDC 125

Count 1 was proved beyond reasonable doubt because CP admitted materially identical touching of ML, the court found an assault accompanied by an act of indecency, ML did not consent, and CP was reckless as to consent with no reasonable basis to believe she was consenting; tendency evidence was not relied upon for that conclusion. Counts 2 to 8 concerning SJ were not proved beyond reasonable doubt because, after careful scrutiny and despite tendency evidence, SJ's evidence was imprecise, vague, inconsistent or lacking in detail, CP's denial and account might be true, and the Crown had not proved the elements beyond reasonable doubt.

Jurisdiction
Australia
Judgment Date
22 April 2022
Procedural Posture
Criminal Prosecution on Indictment / Judge Alone Trial; Verdict/principal Judgment
Outcome
Accused found guilty of count 1 and not guilty of counts 2, 3, 4, 5, 6, 7 and 8 on the indictment.
Legal Topics
['indecent Assault' 'sexual Intercourse Without Consent' 'consent' 'recklessness as to Consent' 'historical Offending During Marriage' 'tendency Evidence' 'complaint Evidence' 'delay Warning' 'judge Alone Trial']
['criminal Law' 'evidence' 'sexual Offences'] ['indecent Assault' 'sexual Intercourse Without Consent' 'consent' 'recklessness as to Consent' 'historical Offending During Marriage' 'tendency Evidence' 'complaint Evidence' 'delay Warning' 'judge Alone Trial']

Case Brief

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Procedural Posture

Criminal Prosecution on Indictment / Judge Alone Trial; Verdict/principal Judgment

Legal Issues

  1. 1 ['Whether the accused indecently assaulted ML contrary to section 61L of the Crimes Act 1900 and knew or was reckless as to lack of consent.' 'Whether the accused had sexual intercourse with SJ without consent contrary to section 61I of the Crimes Act 1900 on counts 2 to 7.' 'Whether the accused indecently assaulted SJ contrary to section 61L of the Crimes Act 1900 on count 8.' 'Whether complaint evidence and tendency evidence supported proof of the charged offences beyond reasonable doubt.' 'Whether delay in complaint and prosecution affected the ability of the accused to test the prosecution evidence and raised reasonable doubt.']

Ratio Decidendi

Count 1 was proved beyond reasonable doubt because CP admitted materially identical touching of ML, the court found an assault accompanied by an act of indecency, ML did not consent, and CP was reckless as to consent with no reasonable basis to believe she was consenting; tendency evidence was not relied upon for that conclusion. Counts 2 to 8 concerning SJ were not proved beyond reasonable doubt because, after careful scrutiny and despite tendency evidence, SJ's evidence was imprecise, vague, inconsistent or lacking in detail, CP's denial and account might be true, and the Crown had not proved the elements beyond reasonable doubt.

Court Disposition

Accused found guilty of count 1 and not guilty of counts 2, 3, 4, 5, 6, 7 and 8 on the indictment.

Orders

  • ['I find the accused guilty of count 1 on the indictment.' 'I find him not guilty of counts 2, 3, 4, 5, 6, 7 and 8 on the indictment.']