R v AM [2024] NSWDC 280

District Court New South Wales

Medium Neutral Citation: R v AM [2024] NSWDC 280 Hearing dates: 1 July 2024 – 5 July 2024 Date of orders: 11 July 2024 Decision date: 11 July 2024 Jurisdiction: Criminal Before: Grant DCJ Decision: The accused is found not guilty. Catchwords: CRIMINAL LAW – Judge alone trial – re-trial on one count – jury in initial trial acquitted accused of three counts – effect of acquittals on remaining count – motive to lie – visa to remain in Australia – context evidence – verdict of not guilty Legislation Cited: Crimes Act 1900 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Cases Cited: Fleming v The Queen (1998) 197 CLR 250 Gilham v R [2012] NSWCCA 131. R v Markuleski (2001) 52 NSWLR 82. Washer v Western Australia (2007) 234 CLR 492 Category: Principal judgment Parties: Rex (Crown) AM (Accused) Representation: Counsel:

Mr W Martin (Solicitor Advocate) (Crown) Ms T O'Rourke (Accused)

Solicitors:

Ms A Gunawardhana (Crown) Ms L Dao (Accused) File Number(s): 2022/00035948 Publication restriction: Section 578A of the Crimes Act 1900 (NSW) prohibits the publication of any matter that may identify the victim in sexual offence proceedings.

JUDGMENT

Background 1. The accused, AM, stands before me for trial by judge alone. It is a retrial. The original trial took place between 20 November 2023 and 30 November 2023 and was before a jury. The accused was arraigned and pleaded not guilty to four counts namely, that he, 1. between 31 July 2021 and 1 November 2021 at Auburn in the State of New South Wales, did intimidate RM with the intention of causing her to fear physical or mental harm, contrary to s 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW), 2. on 13 December 2021 in Auburn in the State of New South Wales, did assault RM thereby occasioning actual bodily harm to her, contrary to s 59(1) Crimes Act 1900 (NSW), 3. on 3 February 2022 in Auburn in the State of New South Wales, did intimidate RM with the intention of causing her to fear physical or mental harm contrary to s 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW), and 4. on 6 February 2022 at Auburn in the State of New South Wales, did have sexual intercourse with RM without her consent and knowing that RM was not consenting to the sexual intercourse, contrary to s 61I Crimes Act 1900 (NSW). 1. On 30 November 2023 the jury returned verdicts of not guilty to Counts 1, 2 and 3. The jury were unable to reach a verdict on Count 4 and accordingly were discharged without verdict. 2. The accused was arraigned before me on 1 July 2024 and pleaded not guilty to one count, namely, that he, 1. on 6 February 2022, at Auburn, in the State of New South Wales, did have sexual intercourse with RM without the consent of RM, knowing she was not consenting to the sexual intercourse, contrary to s 61I Crimes Act 1900 (NSW). 1. By agreement between the parties, the Crown adduced evidence of the allegations contained in Counts 1, 2 and 3 in this trial, even though the accused had been found not guilty of those counts. 2. The Crown accepted they could not use the allegations in proof of the count alleging sexual intercourse without consent. ("Count 4"). 3. Ms O'Rourke, who appears for the accused, submitted it was necessary for the Court to hear the evidence relating to Counts 1,2 and 3 from the previous trial to properly understand the cross-examination. 4. The parties agreed that the accused is entitled to the full benefit of the acquittals. Ms O'Rourke submitted that the acquittals went to the question of the accuracy and the reliability of the complainant, and I as the trial Judge could use that in consideration of whether the Crown could prove beyond reasonable doubt Count 4. 5. The issue in the trial was consent. The accused conceded that sexual intercourse took place. It is for me to determine if the Crown could prove beyond reasonable doubt that the complainant was not consenting and that the accused new that she was not consenting or was reckless that she was not consenting. 6. I now set out briefly the allegations contained in Counts 1, 2 and 3 from the previous trial.