R v A, GP - [2011] SADC 181

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v A, GP
[2011] SADC 181
Reasons for the Verdicts of His Honour Judge Chivell
23 November 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge without a jury - indecent assault, 3 counts - Complainant aged 8 or 9 at time of alleged offences - delay of 5 - 6 years until reported to police - forensic disadvantage - Verdicts - Guilty - 3 counts
Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 28, 34CB(2), 34M(4)(a), 34M(4)(b), 34M(4)(c), referred to.
R v R, R & R, LJ [2008] SASC 35; R v HS [2004] SASC 300; R v Liddy (2002) 81 SASR 22, considered.

R v A, GP
[2011] SADC 181
Introduction

Mr A is charged with 3 counts of indecent assault. He has elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act, 1927. The complainant is his daughter. The amended information reads as follows:
First Count
Indecent Assault
GPA between the 1^st day of September 2000 and the 31^st day of December 2002 at Hallett Cove, indecently assaulted J, a person under the age of 10 years.
Second Count
Indecent Assault
GPA between the 1^st day of September 2000 and the 31^st day of December 2002 at Beverley, indecently assaulted J, a person under the age of 10 years.
Third Count
Indecent Assault
GPA between the 1^st day of September 2000 and the 31^st day of December 2002 at Beverley, indecently assaulted J, a person under the age of 10 years.
The complainant, to whom I will refer as “J”, was born on 4 January 1992. Mr A was in a defacto relationship with J’s mother, Ms R. They separated when she was about 2 years old. Mr A continued to have access to J after the separation, every second weekend.
J and her mother lived in a country town. J would travel to Adelaide for access; initially Mr A would pick her up, later she would travel by bus. By the time of the alleged offences, when she was 8 or 9 years old, she was travelling by bus.
During the period covered by the information, Mr A lived at a number of different addresses. Much of the evidence was directed at where he was living at particular times when J alleged the offences took place.
General Directions
The Supreme Court has stated that it is not necessary that I set out in these reasons all of the directions which a judge might give to a jury in a criminal trial.[1]
[1] R v R, R & R, LJ [2008] SASC 35
However, I remind myself of the following fundamental principles:
·the accused is entitled to the presumption of innocence - he is to be regarded as innocent unless and until his guilt has been proved by the prosecution beyond…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v A, GP

Details

AGLC: R v A, GP [2011] SADC 181
Case: [2011] SADC 181
Decision Date: 23 November 2011

CaseChat Overview and Summary

The case before the court involved an accused individual, referred to as A, GP, who was charged with multiple counts of indecent assault against an eight or nine-year-old complainant. The alleged offences were reported to the police after a delay of approximately five to six years. The trial was conducted by a judge alone without the presence of a jury. The complainant faced a forensic disadvantage due to the significant passage of time since the alleged incidents.

The primary legal issues for the court to address were whether the evidence presented was sufficient to prove the charges beyond reasonable doubt and whether the delay in reporting affected the reliability of the complainant's testimony. The court had to consider the credibility of the complainant's account, the consistency of her statements, and the impact of the delay on the admissibility and weight of her evidence.

The court, in delivering its verdict, found the complainant's testimony credible and consistent, despite the delay in reporting. The judge concluded that the evidence, when considered in its entirety, established the guilt of the accused on all three counts of indecent assault. The court emphasised the importance of evaluating the evidence on its own merits, rather than being swayed by the delay in reporting. Consequently, the accused was found guilty on all counts.

Orders