R v RM (No 4) [2023] NSWDC 93

District Court New South Wales

Medium Neutral Citation: R v RM (No 4) [2023] NSWDC 93 Hearing dates: 14 March – 27 March 2023 Date of orders: 23 March 2023 Decision date: 23 March 2023 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 22 Catchwords: CRIMINAL PROCEDURE – 11 alleged sexual offences against biological daughter – defence application for directed verdicts on counts 5, 6 and 10 Legislation Cited: Crimes Act 1900 (NSW) ss 61H, 61HB, 61KC, 66, 66C Criminal Procedure Act 1986 (NSW) s 306I Cases Cited: Doney v R (1990) 171 CLR 207 Johnson v R [2017] NSWCCA 278 LK v The Queen (2010) 241 CLR 177 R v R (1989) 18 NSWLR 74 Texts Cited: Nil Category: Procedural rulings Parties: Office of the Director of Public Prosecutions (ODPP) RM (accused) Representation: Counsel: Mr C Reynolds for the ODPP Ms K Hogan for the accused

Solicitors: ODPP AJA Associates for the accused File Number(s): 2020/00213495 Publication restriction: Non-publication order regarding the identity of the accused and the complainant

JUDGMENT 1. The accused is tried on indictment of 11 counts of sexual offences allegedly committed against his daughter arising from 9 alleged incidents occurring when she was aged between 9 and 18. 2. The Crown has closed its case. Instantly, Counsel for the accused applied for directed verdicts on three of those counts. They are as follows. Count 5: contrary to s 66C(2) of the Crimes Act 1900 (NSW) (the "Crimes Act"), between 17 January 2015 and 31 December 2015, at Glendenning in the state of New South Wales, the accused had sexual intercourse with the complainant, a person above the age of ten years and under the age of 14 years; namely, 13 years, in circumstances of aggravation, namely, the complainant was under his authority. Count 6: contrary to s 66C(4) of the Crimes Act, the accused, between 17 January 2015 and 16 January 2017, at Glendenning in the state of New South Wales, had sexual intercourse with the complainant, a person above the age of ten years and under the age of 16 years; namely, 13 or 14 years, in circumstances of aggravation, namely, the complainant was under his authority. Count 10: contrary to s 61KC(a) of the Crimes Act, that the accused on 19 July 2020, at Glendenning in the state of New South Wales, sexually touched the complainant without her consent and knowing that she was not consenting. 1. A verdict of not guilty may be directed only if "there is a defect in the evidence such that taken at its highest, it will not sustain a verdict of guilty": Doney v R (1990) 171 CLR 207 at [214] - [215]; LK v The Queen (2010) 241 CLR 177 at [29]. It is not enough that the trial judge forms a view that a guilty verdict would be unsafe or unsatisfactory" R v R (1989) 18 NSWLR 74. 2. The applications are made on the basis that on each of the counts identified and the evidence relied upon in its case, the Crown cannot prove all of the essential elements of the offences.