R v At - [2004] ACTSC 118

R v AT [2004] ACTSC 118 (5 NOVEMBER 2004)

CRIMINAL LAW – trial by judge alone – offence of act of indecency upon a person under the age of 10 years – unsworn evidence by child – warning as to reliability of evidence of complainant – s 165 Evidence Act 1995 (Cth) – s 70 Evidence (Miscellaneous Provisions) Act 1991 (ACT) – absence of need of corroboration for either unsworn evidence or evidence of children – consideration of response by accused to allegation – previous good character – offence not proved beyond reasonable doubt.

Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 8, s 40, s 70

Supreme Court Act 1933 (ACT), s 68C

Evidence Act 1995 (Cth), s 13, s 165

Evidence Act 1971 (ACT), s 64

Fleming v The Queen (1998) 197 CLR 250

R v Tran [2003] ACTSC 53

R v EG, unreported [2002] ACTSC 85, 28 August 2002, Crispin J

DPP v Hester [1973] AC 296

R v Schlaefer (1984) 37 SASR 207

R v Murphy (1985) 4 NSWLR 42

Papakosmas v The Queen (1999) 196 CLR 297

No. SCC 145 of 2004

Judge: Gray J
Supreme Court of the ACT

Date: 5 November 2004

IN THE SUPREME COURT OF THE     )
  )          No. SCC 145 of 2004
AUSTRALIAN CAPITAL TERRITORY           )

THE QUEEN
against
AT

ORDER

Judge:  Gray J
Date:  5 November 2004
Place:  Canberra

THE COURT FINDS in respect of the offence that on 2 October 2003 at Canberra in the Australian Capital Territory, [the accused] committed an act of indecency upon the complainant named in the indictment who was then a person under the age of 10 years namely 7 years that the accused is not guilty.

Non publication

This proceeding is a sexual offence proceeding. Section 40 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) makes it a strict liability offence to publish the name of the complainant, protected information about the complainant, a reference or allusion that discloses the complainant’s identity or from which a complainant’s identity may reasonably be inferred. In these reasons, I have not referred to the name of the complainant or those names of the witnesses who gave evidence that might identify the complainant. As the accused is a neighbour, the publication of his name or his address might identify the complainant. Accordingly, these matters are the subject of an appendix to these reasons which I order not to be published but be made available to the prosecution and the accused to be used by them for the purpose of these and any subsequent proceedings only.

The charges

The accused was arraigned before me on two counts. He pleaded not guilty to the charges that,

… on 2 October 2003 at Canberra in the Australian Capital Territory [the accused] committed an act of indecency upon [the complainant] who was then a person under the age of 10 years namely 7 years.
…on 2 October 2003 at Canberra in the Australian Capital Territory [the accused] committed an…

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 At

Details

AGLC: R v At [2004] ACTSC 118
Case: [2004] ACTSC 118
Decision Date: 5 NOVEMBER 2004

CaseChat Overview and Summary

The defendant was charged with the offence of committing an act of indecency upon a person under the age of 10 years. The matter was heard by a judge alone in the Magistrates Court of the Australian Capital Territory. The central issue before the court was whether the evidence presented was sufficient to prove the defendant's guilt beyond reasonable doubt. This included assessing the reliability of the child's unsworn testimony and the absence of a requirement for corroboration under the relevant legislation.

The court had to determine if the child's evidence, despite being unsworn, was sufficiently reliable and convincing. Additionally, the court considered the statutory provisions, including section 165 of the Evidence Act 1995 (Cth) and section 70 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), which provided guidance on the evaluation of evidence from a child complainant and the lack of a corroboration requirement. The court also examined the defendant's response to the allegations and the defendant's previous good character, weighing these factors against the threshold of proof beyond reasonable doubt.

After careful consideration of the evidence and applicable legal principles, the court concluded that the prosecution had not proven the offence beyond reasonable doubt. The judge found the child's evidence, although credible, did not reach the requisite standard of certainty. Consequently, the defendant was acquitted of the charge. The court ordered that the defendant be discharged without conviction.

Orders