R v AJ - [2012] ACTSC 25

R v AJ [2012] ACTSC 25 (8 February 2012)

CRIMINAL LAW – particular offences – offences against the person – assault and act of indecency on female under age of 16 – judge-alone trial – verdict of not guilty.

CRIMINAL LAW – jurisdiction, practice and procedure – limitation of time for prosecution – assault and act of indecency on female under age of 16 – no prosecution more than 12 months after alleged offence if girl “over the age of fourteen years and under the age of sixteen years” – indictment alleged acts in 1978 or 1979 – evidence that acts complained of might have taken place after complainant turned 14 years of age – verdict of not guilty.

Crimes Act 1900 (ACT) ss 69-72, 73, 74, 76, 77, 78
Evidence (Miscellaneous Provisions) Act 1991 (ACT), Div 4.2, ss 40, 43, 46
Supreme Court Act 1933 (ACT), s 68C

Saraswati v The Queen (1991) 172 CLR 1

No. SCC 109 of 2008

Judge: Penfold J
Supreme Court of the ACT

Date: 8 February 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCC 109 of 2008
AUSTRALIAN CAPITAL TERRITORY           )

R
v
AJ

REASONS FOR JUDGMENT

Judge:  Penfold J
Date:  16 December 2008
Place:  Canberra

THE COURT ORDERED THAT:

A verdict of not guilty be entered on the charge that between 1 June 1978 and 11 May 1979 the accused assaulted the complainant, who was under the age of 16 years, to wit 13 years of age, and at the time of the assault committed an act of indecency on her.

Introduction

The charge

The accused AJ was arraigned before me on one count, as follows:

That between the 1^st day of June 1978 and the 11th day of May 1979 at Canberra in the Australia Capital Territory [he] assaulted a female, [the complainant], who was under the age of 16 years, to wit 13 years of age, and at the time of the assault, committed an act of indecency upon [the complainant].

Legislation

The charge arose under s 76 of the Crimes Act 1900 (ACT) as in force at the time of the alleged offence. That section operated subject to s 78 of the Crimes Act. The two provisions were in the following terms:

Indecent assault
76. A person who assaults a female and at the time of, or immediately before or after, the assault commits an act of indecency upon or in the presence of that female is liable to imprisonment for three years, or, if the female is under the age of sixteen years, to penal servitude for five years.
Limitation
78. If the girl was, at the time of the alleged offence, over the age of fourteen years and under the age of sixteen years, no prosecution under section seventy-one, seventy-two or seventy-six of this Act shall be commenced after the expiration of 12 months from the time of the alleged offence.

The accused pleaded not guilty to the charge.

Trial by judge…

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 AJ

Details

AGLC: R v AJ [2012] ACTSC 25
Case: [2012] ACTSC 25
Decision Date: February 8, 2012

CaseChat Overview and Summary

The appellant was convicted in the County Court of Victoria of two counts of assault and one count of an indecent act on a girl under the age of 16 years. The girl, who was under the age of 16 years at the relevant time, was a foster child in the appellant’s care. The trial was before a judge alone and the jury was discharged. The appellant appealed against conviction to the Court of Criminal Appeal. The central issue before the court was whether the prosecution was statute-barred, as the alleged offences were said to have been committed more than 12 months before the indictment was preferred. The relevant statutory provision stated that no prosecution for the offences in question could be instituted more than 12 months after the commission of the offence if the girl was over the age of 14 years and under the age of 16 years at the time of the alleged offence.

The court considered whether the evidence showed that the alleged offences occurred within the statutory period. The court noted that the girl had testified that the offences occurred in 1978 or 1979, but the appellant contended that the offences could have occurred after she turned 14 years of age. The court concluded that there was no evidence to establish that the offences occurred after the girl turned 14 years of age. The court held that the prosecution was not statute-barred as the evidence did not establish that the offences occurred after the statutory period had expired. The appeal was dismissed, and the convictions were upheld.

Orders