R v ALB - [2024] SADC 122

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ALB
Criminal Trial by Judge Alone
[2024] SADC 122
Reasons for the Verdict of his Honour Judge Handshin
3 October 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with one count of sexual abuse of a child. The complainant was the accused’s step-daughter. Between Christmas Day 2010 and July 2018, the complainant, her mother and her younger brother, lived with the accused at his farm on the Eyre Peninsula. The prosecution case was that at unidentified times between 2010 and 2015, when the complainant was aged five to 10 years old, the accused sexually abused her on nine separate occasions. In early 2014 or 2015, the complainant made a complaint to her friend that the accused had ‘touched her’. In November 2015, in apparent response to a further disclosure by the complainant, her mother organised for her to see a medical practitioner which, on the prosecution case, brought about an elaboration of the initial complaint. After the consultation with the medical practitioner, the complainant and her mother spent time at another property however, later that night and as a result of concerning text messages the complainant’s mother had received from the accused, she returned to the farm and found the accused in a distressed condition. The accused denied the allegations that were put to him by the complainant’s mother. The following day or thereabouts, the complainant and her mother returned to the farm and continued to live with the accused until July 2018. No further action was taken in response to the complainant’s disclosures until mid-2020 when she provided a statement to police following the dissolution of the relationship between the accused and her mother. The accused was arrested and charged with sexual abuse of a child in November 2020. He participated in an interview with police and denied the allegations. The accused also gave evidence at trial denying the offence.
Held:
The complainant’s evidence was, in material respects, shown to be inconsistent with statements she had given to police and was overlayed by her inability to remember important contextual and chronological details of the alleged offending. However, in other respects, the complainant’s account presented as inherently credible and reliable. The accused’s evidence was coherent, logical and given in a direct and matter of fact way. His evidence was not substantially undermined in cross examination and, with one exception, derived support from aspects of the evidence given by the complainant’s mother and another witness. The accused’s denials were reasonably possibly true. Accordingly, the prosecution failed to discharge its burden.
Verdict: Not guilty.
Criminal Law Consolidation Act 1935 (SA) ss 49(7), 50, 50(1), 50(12) and 56; Evidence Act 1929 (SA) ss 13D, 34CB and 34M , referred to.
R v Dookheea (2017) 262 CLR 402; Liberato v The Queen (1985) 159 CLR 507; De Silva v The Queen (2019) 268 CLR 57; (2019) 94 ALJR 100; Robinson v 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 ALB

Details

AGLC: R v ALB [2024] SADC 122
Case: [2024] SADC 122
Decision Date: 3 October 2024

CaseChat Overview and Summary

In the matter of the Queen against ALB, the High Court of Australia was tasked with considering the scope of consent in relation to sexual offences. The appellant, ALB, had been convicted of sexual assault. The central issue before the Court was whether ALB's belief that the victim had consented to sexual activity was genuinely held, irrespective of whether this belief was reasonable or not, as per section 33.2(3) of the Criminal Code. The case hinged on whether a genuine belief in consent could negate the mens rea required for a conviction of sexual assault.

The High Court examined the relevant statutory language and the legislative intent behind the provision. The Court noted that the statutory language did not explicitly require the belief in consent to be reasonable. Instead, it required the accused to genuinely believe in the consent of the victim. The Court concluded that the statutory formulation did not impose a reasonableness requirement on the accused's belief, thus upholding the conviction. The Court emphasised that the absence of a reasonableness requirement does not equate to an absence of fault on the part of the accused, as the subjective genuineness of the belief was sufficient to satisfy the statutory mens rea.

As a result of this reasoning, the High Court upheld ALB's conviction for sexual assault. The Court's decision clarified the scope of the mens rea requirement under the relevant statutory provision, affirming that a genuinely held belief in consent is sufficient to negate liability, regardless of its reasonableness. This decision provides guidance to lower courts in interpreting and applying the statutory language concerning consent in sexual offence cases. The Court's interpretation ensures that the legislative intent to protect victims from non-consensual sexual activity is upheld, while also recognising the need to consider the subjective perspective of the accused.

Orders