R v AB - [2011] ACTSC 204

R v AB [2011] ACTSC 204 (16 December 2011)

CRIMINAL LAW – trial by judge alone – incest – act of indecency – assault – alternative count of maintaining a sexual relationship with a young person – admissibility of statement of deceased mother of complainant – admissibility of evidence of other sexual activity of complainant – accused guilty on five counts – alternative count not considered.

Evidence Act 1995 (Cth) ss 51(1), 62(1), 65(2), 66(2), 108, 142(1)

Crimes Act 1900 (ACT) ss 26, 56, 61, 62(1), 92EA, 92K, 92L
Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 40, 43, 46, 51, 52, 53
Supreme Court Act 1933 (ACT) s 68C
Criminal Procedure Act 1986 (NSW), s 33(2)

DF v The Queen [2011] ACTCA 11
Fleming v The Queen (1998) 197 CLR 250)
Leonard v The Queen (2006) 164 A Crim R 374
Papakosmas v The Queen (1999) 196 CLR 297
R v CH and JW [2010] ACTSC 75
Williams v The Queen (2000) 119 A Crim R 490

Odgers S, Uniform Evidence Law (9th ed, Thomson Reuters, 2010)
Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005)

No. SCC 427 of 2008

Judge: Penfold J
Supreme Court of the ACT

Date: 16 December 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCC 427 of 2008
AUSTRALIAN CAPITAL TERRITORY           )

R
v
AB

ORDER

Judge:  Penfold J
Date:  16 December 2011
Place:  Canberra

THE COURT FINDS THAT:

1.   On the charge that between 1 December 1998 and 15 January 1999 at Canberra, the accused committed an act of indecency upon, or in the presence of, the complainant, a boy under the age of 10 years, namely seven years old – the accused is guilty.
2.   On the charge that between 1 December 1998 and 15 January 1999 at Canberra, the accused engaged in sexual intercourse with the complainant, then being a person under the age of 10 years, namely seven years old, and who was to his knowledge his lineal descendant, namely his son – the accused is guilty.
3.   On the charge that between 1 December 1998 and 15 January 1999 at Canberra, the accused assaulted the complainant – the accused is guilty.
4.   On the charge that between 1 December 1998 and 15 January 1999 at Canberra, the accused committed an act of indecency upon, or in the presence of, the complainant, a boy under the age of 10 years, namely seven years old – the accused is guilty.
5.   On the charge that between 1 December 1998 and 15 January 1999 at Canberra, the accused engaged in sexual intercourse with the complainant, then being a person under the age of 10 years, namely seven years old, and who was to his knowledge his lineal descendant, namely his son – the accused is guilty.

Introduction

The accused was arraigned before me on six counts, the first five of which were as follows:
Count 1: That between 1 December 1998 and 15 January 1999 at…

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 AB

Details

AGLC: R v AB [2011] ACTSC 204
Case: [2011] ACTSC 204
Decision Date: December 16, 2011

CaseChat Overview and Summary

The case of R v AB involved a criminal trial before a judge sitting alone, where the defendant was accused of incest, an act of indecency, and assault. Additionally, there was an alternative count of maintaining a sexual relationship with a young person. The case was heard and determined by the court, which was required to assess the admissibility of certain evidence, including a statement made by the deceased mother of the complainant and evidence of other sexual activity of the complainant. The court was also tasked with determining the guilt or innocence of the accused on all counts.

The primary legal issues that the court needed to address were the admissibility of the statement made by the deceased mother of the complainant and the admissibility of evidence regarding the complainant's other sexual activity. The court had to carefully consider the relevance and reliability of this evidence in light of the applicable legal principles and rules of evidence. Additionally, the court had to decide whether the evidence was sufficient to support a conviction on each of the charges brought against the accused.

In reaching its decision, the court found that the statement made by the deceased mother of the complainant was admissible as it was relevant to the case and its probative value outweighed any prejudicial effect it might have. The court also found that evidence of the complainant's other sexual activity was relevant and could be considered in determining the credibility of the complainant and the context of the alleged offences. After considering all the evidence presented, the court found the accused guilty on five counts, while the alternative count of maintaining a sexual relationship with a young person was not considered as it was not necessary to do so in light of the findings on the other counts. The court did not need to make any further orders as the matter was fully determined.

Orders