R v AJE - [2023] SADC 172

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v AJE
Criminal Trial by Judge Alone
[2023] SADC 172
Reasons for the Verdict of her Honour Judge Schammer
12 December 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE - CROSS-ADMISSIBILITY - SIMILARITY OF ACCOUNT
CRIMINAL LAW - EVIDENCE - COMPLAINTS
CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR INCONSISTENT STATEMENTS
The accused, AJE, is charged on Information dated 9 May 2022 with five counts for offending against three of the children of his former partner, PT.
The first complainant, KD, is PT’s fourth son. It is alleged that between 10/08/2012 and 26/09/2017, when KD was aged between 5 and 10, the accused maintained an unlawful sexual relationship with KD contrary to s 50(1) of the Criminal Law Consolidation Act, 1935 (the Act) (count 1). Count 2 relates to an alleged aggravated assault committed against KD between 19/11/2016 and 26/09/2017, when KD was aged between 9 and 10.
The second complainant, AT, is PT’s daughter. It is alleged that between 01/07/2014 and 26/09/2017, when AT was aged between 4 and 7, the accused maintained an unlawful sexual relationship with her contrary to s 50(1) of the Act (count 3).
The third complainant, ISD, is PT’s third son. It is alleged that between 30/08/2014 and 26/09/2017, when ISD was aged between 8 and 11, and between 30/06/2015 and 26/09/2017, when ISD was aged between 9 and 11, that the accused had unlawful sexual intercourse with ISD contrary to s 49(1) of the Act (respectively counts 4 and 5).
The offending is alleged to have occurred at the home, or homes, where the accused lived with PT and the complainants during the course of his relationship with PT. That relationship ended in 26 September 2017, when the accused allegedly assaulted PT in the kitchen of their home.
The Court heard evidence that the accused regularly beat PT, sometimes in the presence of the complainants. In addition, the complainants gave evidence that the accused would physically discipline them by hitting them with a belt or cord, at times leaving bruises.
The offending is therefore alleged to have occurred in circumstances where the accused exercised physical control over the complainants and others in the household and where they were fearful of him.
The offending as described by the complainants, in each instance, involved brazen offending, often conducted at night, in the lounge room, while others were asleep in adjacent rooms.
Some of the alleged offending was said to have been accompanied by threats made by the accused to harm the complainant/s in the event that they either did not participate in the alleged unlawful sexual act/s and/or if they disclosed the offending to anyone.
The prosecution sought to rely on similarity of account reasoning, but not propensity reasoning.
The accused elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927.
At trial, it was argued that the…

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 AJE

Details

AGLC: R v AJE [2023] SADC 172
Case: [2023] SADC 172
Decision Date: 12 December 2023

CaseChat Overview and Summary

In the matter of R v AJE, the respondent, AJE, was convicted of sexual assault and was subject to appeal. The appeal was heard in the Court of Appeal, where the primary concern was the admissibility and weight of certain evidence presented during the trial. The respondent challenged the trial judge's decision to admit prior inconsistent statements made by the complainant as well as the cross-admissibility of similar fact evidence. The respondent contended that these decisions unfairly prejudiced his case and led to an unsafe and unsatisfactory conviction.

The court was required to determine whether the trial judge correctly exercised his discretion in admitting the evidence and whether such admission was appropriate given the circumstances of the case. The issues included the relevance and probative value of the prior inconsistent statements, the similarity of the accounts provided by the complainant, and the potential prejudicial effect of the evidence on the jury's decision-making process. The court also had to consider the principles governing the admissibility of similar fact evidence and its impact on the respondent's right to a fair trial.

In delivering the judgment, the court held that the trial judge's decision to admit the evidence was not an error of law. The court found that the prior inconsistent statements were relevant to the credibility of the complainant and had probative value in assessing the truthfulness of her account. The court also determined that the similarity of the accounts provided by the complainant and other witnesses supported the admissibility of the evidence. Additionally, the court considered that the potential prejudicial effect of the evidence was balanced by its probative value and did not render the trial unfair. The court concluded that the trial judge had correctly exercised his discretion, and the conviction was safe and satisfactory.

The appeal was dismissed, and the conviction of the respondent was upheld.

Orders