AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 23 March 2023

R v RM (No 4)

[2023] NSWDC 93

Sexual offences
CRIMINAL PROCEDURE

Citation: R v RM (No 4) [2023] NSWDC 93
Court: District Court of New South Wales
Date: 23 March 2023
Judge: Abadee DCJ

Background

The accused faced 11 counts of sexual offences allegedly committed against his biological daughter across nine incidents occurring when she was aged between 9 and 18 years. The charges included offences under the Crimes Act 1900 (NSW) relating to sexual intercourse with a child and, more recently, sexual touching without consent.

Following the close of the Crown's case, defence counsel applied for directed verdicts of not guilty on three counts: count 5 (aggravated sexual intercourse with a child aged 13, contrary to s 66C(2)), count 6 (aggravated sexual intercourse with a child aged 13 or 14, contrary to s 66C(4)), and count 10 (sexual touching without consent, contrary to s 61KC(a)).

The trial itself was a retrial: an earlier proceeding had been discontinued after the jury was discharged. The complainant's evidence from that original trial was recorded and replayed to the jury in the current proceedings under s 306I of the Criminal Procedure Act 1986 (NSW).

  • Whether the Crown's evidence on count 5 was sufficient to sustain a guilty verdict, given the complainant's uncertainty about her own age at the time of the alleged incident.
  • Whether the complainant's description of physical contact on count 6 satisfied the statutory definition of "sexual intercourse," specifically the element of "penetration" of the female genitalia.
  • Whether the accused's conduct on count 10 constituted "sexual touching" within the meaning of s 61HB, where his hands contacted the complainant's hands rather than her breasts directly.
  • The applicable test for directing a verdict of not guilty at the close of the Crown's case.

Decision

The applicable test. A directed verdict of not guilty is available only where there is a defect in the evidence such that, taken at its highest, it cannot sustain a guilty verdict: Doney v R (1990) 171 CLR 207. The fact that a trial judge might regard a guilty verdict as unsafe or unsatisfactory is not sufficient to warrant removal of a count from the jury.

Count 5. The complainant gave evidence that she believed she was "13 or 14" at the time of the relevant incident. The defence argued that if the jury found she was 14, the offending would fall outside the date range for this count. Abadee DCJ held that, taking the Crown's case at its highest, it remained open for the jury to find she was 13. The Crown's indication that it also intended to rely on a statutory alternative charge did not constitute an abandonment of count 5. The application was refused.

Count 6. The central question was whether the complainant's description of physical contact satisfied the definition of sexual intercourse, which at the relevant time required "penetration, to any extent, of the genitalia" of a female person. The complainant described the accused's penis as being "kind of in the middle ground," at times inside her labia majora, though never fully inside her vagina. Relying on Johnson v R [2017] NSWCCA 278, his Honour confirmed that penetration of the female genitalia does not require penetration of the vagina itself, and that the words "to any extent" call for a broad construction. It was open to the jury to find that penetration of the female genitalia had occurred. The application was refused.

Count 10. The accused touched the complainant's hands, not her breasts directly, because her hands were covering her breasts at the time. The defence submitted this fell short of sexual touching. Abadee DCJ rejected that submission, noting that sexual touching under s 61HB is not confined to touching a specifically sexual body part. Any touching may qualify where a reasonable person would consider it sexual, assessed against the mandatory factors in s 61HB(2). Critically, the complainant's hands were covering her breasts, she was actively resisting movement of those hands, and the accused was simultaneously masturbating in close proximity. The jury could draw an inference of temporal connection between the touching and the accused's self-gratification. The application was refused.

Orders Made

• The application for directed verdict in relation to count 10 is refused.

Key Takeaways

  • The test for a directed verdict requires a defect in the evidence itself: it is not enough that a trial judge regards a guilty verdict as unsafe or unsatisfactory, as confirmed in Doney v R and LK v The Queen.
  • Under the definition of sexual intercourse in s 61H(1) of the Crimes Act as it stood at the relevant time, penetration "to any extent" of the female genitalia does not require penetration of the vaginal canal itself; penetration within the labia majora may suffice.
  • A complainant's expressed uncertainty about her own age at the time of an alleged offence does not automatically warrant withdrawal of a count from the jury, provided the evidence, taken at its highest, is capable of supporting the requisite finding.
  • Sexual touching under s 61HB is assessed by reference to whether a reasonable person would consider the touching sexual, having regard to mandatory factors including purpose and surrounding circumstances, rather than by reference to whether a specifically named body part was directly contacted.
  • The District Court found that contextual circumstances, including the accused simultaneously masturbating while touching the complainant's hands as they covered her breasts, were capable of supporting an inference that the touching was for the purpose of sexual gratification.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61H, 61HB, 61KC, 66, 66C
- Criminal Procedure Act 1986 (NSW), s 306I

Cases
- 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