R v Callum [2023] NSWChC 7

Children's Court New South Wales

Medium Neutral Citation: R v Callum [2023] NSWChC 7 Hearing dates: 13 February 2023 24, 25 May 2023 Date of orders: 29 June 2023 Decision date: 29 June 2023 Jurisdiction: Criminal Before: Magistrate R Hosking Decision: Sequence 1: Not guilty Sequence 2: Not guilty Catchwords: CHILDREN - Sexual assault - Applicability of Crimes Act 1900 (NSW) s 80AB - Alternative verdicts in the Children's Court/Local Court Legislation Cited: Crimes Act 1900 (NSW) ss 3, 61I, 61J, 80AB Evidence Act 1995 (NSW) ss 59, 66,135, 136, 137, 144 Crimes Legislation Amendment (Sentencing) Act 1999 (NSW) Schedule 2 Criminal Procedure Act 1986 (NSW) s 15, Ch 4, Pt 2 Children (Criminal Proceedings) Act 1987 (NSW) s 27 Interpretation Act 1987 (NSW) ss 34, 35 Cases Cited: James v The Queen [2014] HCA 6 The Queen v Coutts [2006] 1 WLR 2154 PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service [1995] HCA 36 Category: Principal judgment Parties: Director of Public Prosecutions (the Crown) Callum (the young person) Representation: Mr S Matchett (the Crown) Ms C Mendes (the young person) File Number(s): 2022/0069101 Publication restriction: Pseudonyms have been used in order to protect the identity of the young person and the accused.

Judgment 1. The young person appeared at the Albury Local Court on 12 April 2022 and pleaded not guilty to 2 charges of Aggravated Sexual Assault contrary to s 61J(1) of the Crimes Act 1900 (NSW). 2. The matter proceeded to hearing in the Children's Court at Wagga Wagga on 13 February, 24 and 25 May 2023. 3. Ultimately the Crown alleged: 1. That Callum on or about the 27th or 28th of January 2022, at XXXX, in the State of NSW, did have sexual intercourse with [the complainant] without her consent, and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, to wit, that at the time of the offence [the complainant] was a person aged under the age of 16 years, to wit, being in fact aged 15 years. 2. That Callum on or about the 27th or 28th of January 2022, at XXXX, in the State of NSW, did have sexual intercourse with [the complainant] without her consent, and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, to wit, that at the time of the offence [the complainant] was a person aged under the age of 16 years, to wit, being in fact aged 15 years. 1. The prosecution assert that the sexual assaults alleged occurred in the early hours of either 27 or 28 January 2022, while the young person and the complainant were sharing a bed at the young person's home. The first count is alleged digital penetration by the young person of the complainant's vagina from behind. 2. The second count is alleged penetration by the young person's penis of the complainant's vagina also from behind. 3. The Crown asserts that the complainant was asleep when the digital penetration alleged in count 1 commenced.