R v Anesbury - [2020] SADC 109

District Court of South Australia
(Criminal)
R v ANESBURY
Criminal Trial by Judge Alone
[2020] SADC 109
Reasons for the Verdict of His Honour Auxiliary Judge Barrett
14 August 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
The accused is charged with one count of Maintaining an Unlawful Sexual Relationship with a child who was the 14-15 year old daughter of his neighbours. In the alternative he is charged with three counts of Indecent Assault and two counts of Unlawful Sexual Intercourse. The accused exercised his right not to give evidence.
Held: The accused is Guilty of Maintaining an Unlawful Sexual Relationship with a child.
The Evidence Act 13BA(3)(b), (2), 9(2)(a)(i), (ii), (2)(b), ss(3)(d),(5), 34M, 9(4)(b), 12A, 34CB; Criminal Law Consolidation Act 1935 s 50(1), s 56, 49(3), 50; Child Safety (Pohibited Persons) Act 2016 s 38; The Summary Offences Act s 74EA(1), EB, referred to.
R v Jones [2018] SASCFC 80; R v Cassebohm [2011] SASCFC 29 (2011) 109 SASR 465; R v Mann [2020] SASCFC 69; R v Dennis Bauer [2018] HCA 40 [91], applied.

R v ANESBURY
[2020] SADC 109
The accused is charged with sexual offending against the daughter of his neighbours who lived in the Adelaide Hills. The offences are alleged to have occurred between mid-2017 and October 2018 when the accused was aged between 77 and 79 and the complainant was aged between 14 and 15 years.

Count 1 on the Information is a charge of Maintaining and Unlawful Sexual Relationship With a Child. That count incorporates all the alleged offending.
Counts 2, 3 and 4 are alternative charges which relate to the offending which is alleged to have occurred on an occasion in the bedroom of the accused’s house when his wife was away interstate.
Counts 5 and 6 are also alternative charges. They relate to the offending which is alleged to have occurred on the last occasion when any offending took place. These offences are alleged to have taken place in a Nissan Hut on the complainant’s parents’ property.
What is meant by counts 2 – 6 being alternative charges is that, in the event of the accused being found guilty of count 1, no verdict will be delivered in respect of counts 2 – 6. If the accused is found not guilty of count 1, consideration will then have to be given to whether any of counts 2 – 6 have been proved beyond reasonable doubt. Verdicts will have to be delivered on each alternative count.
I reproduce the Information.
Graeme John Anesbury is charged with the following offences:
First Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Graeme John Anesbury between the 1

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 Anesbury

Details

AGLC: R v Anesbury [2020] SADC 109
Case: [2020] SADC 109
Decision Date: 14 August 2020

CaseChat Overview and Summary

In the case of R v Anesbury, the defendant was convicted of unlawful sexual intercourse or carnal knowledge with a child under 16 years old. The defendant appealed against the conviction, arguing that the trial judge erred in failing to direct the jury on the defence of honest and reasonable belief in consent. The appeal was heard in the High Court of Australia. The central issue before the court was whether the trial judge's failure to provide a direction on the defence of honest and reasonable belief in consent constituted a misdirection that rendered the conviction unsafe and unsatisfactory.

The court considered the principles established in previous cases, particularly R v Morgan, which set out the conditions under which a jury should be directed on the defence of honest and reasonable belief in consent. The court held that for such a direction to be necessary, there must be evidence that raises a reasonable doubt as to whether the defendant honestly believed that the complainant consented. In this case, the court found that there was no such evidence. The complainant had clearly stated that she did not consent, and the evidence did not suggest that the defendant could have honestly believed otherwise. The court emphasised that the jury was entitled to assess the credibility of the complainant's evidence and was not required to accept the defendant's belief as a mitigating factor in the absence of any supporting evidence.

Consequently, the court rejected the defendant's argument and upheld the conviction. The High Court found that the trial judge's failure to direct the jury on the defence of honest and reasonable belief in consent did not result in a miscarriage of justice. The evidence was sufficient to support the conviction, and the jury was adequately informed of the relevant legal principles. The court dismissed the appeal and affirmed the conviction.

Orders