R v B, Dr - [2007] SADC 56

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v B, DR
Criminal Trial by Judge Alone
[2007] SADC 56
Reasons for the Verdicts of His Honour Acting Judge Wilson
7 May 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Two counts of indecent assault against a child under 17 years of age – trial by judge alone.

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - CORROBORATION
FULL LONGMAN-TYPE WARNING NECESSARY
Evidence – unsupported and unconfirmed evidence of complainant alone – notional warning called for in the circumstances of the case re danger of convicting on uncorroborated evidence of complainant and re need for special care – complainant aged 14 at the time complaints of child sexual abuse by his school teacher then aged 25 – delay of more than 45 years – factors (including error re date and alibi and error by complainant in describing the accused’s penis) factors warranting warning considered – failure to complain at all for so long (for more than 42 years) held to affect complainant’s credibility – whether complainant’s evidence of what the accused allegedly said to him could constitute evidence of esoteric knowledge from which to infer implication in the crimes charged.
Criminal Law Consolidation Act 1935 ss 70, 285C; Evidence Act 1929 s 34I, referred to.
R v Corrigan (1998) 74 SASR 454; Longman v R (1989) 168 CLR 79, applied.
R v HS [2004] SASC 300; Doggett v R (2001) 280 CLR 343, considered.

R v B, DR
[2007] SADC 56
The Charges

The accused, Dean Rollo Bain, has been charged, in this trial by judge alone, with two counts of indecent assault, contrary to s70(1)(c) of the Criminal Law Consolidation Act 1935, alleged to have been committed “on the 8^th day of July 1961 at Seaton” when the complainant was under 17 years of age.
The Date of the Alleged Offences
The prosecution alleged, and the complainant was adamant, that the two alleged offences occurred (as part of one incident) in a car at the Shandon Drive-in Theatre at Seaton, to which the accused had allegedly taken the complainant “on 8 July 1961”, more than 45 years ago. The evidence of the complainant, which reveals how adamant he was, is to be found at pp.23, 24, 43, 44, 45, 48, 53, 56, 59 and 60 of the transcript.
The Complainant and the Accused
The alleged victim of the alleged offences which, together, may be characterised as child sexual abuse, was born on 6 June 1947, and was, therefore, aged 14 years at the time of the incident particularised in the counts in the Information. He was aged 56 years at the time he first spoke to the police about these matters, and he was aged 59 years at the time he gave evidence in this trial.
The accused, who was born on 26 December 1935, was aged…

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 B, Dr

Details

AGLC: R v B, Dr [2007] SADC 56
Case: [2007] SADC 56
Decision Date: 7 May 2007

CaseChat Overview and Summary

The case before the court involved a conviction on two counts of indecent assault against a child under 17 years of age. The accused, Dr. B, was tried by a judge alone. The complainant, who was 14 years old at the time of the alleged offences, testified against Dr. B, who was his school teacher at the time. The case hinged on the uncorroborated testimony of the complainant, who did not report the alleged offences until more than 45 years later.

The court was required to consider the weight and reliability of the complainant's evidence, particularly given the significant delay in reporting the offences and certain discrepancies in his account. The judge needed to assess whether the complainant's testimony was sufficiently corroborated to warrant a conviction and whether the notional warning, as articulated in the case of Longman, was necessary to ensure the safety of the verdict.

The court found that the complainant's delay in reporting the offences, combined with errors in his account regarding dates and physical descriptions, significantly affected his credibility. The court held that the evidence was not corroborated to the extent necessary for conviction. The court delivered a notional warning, emphasising the dangers of convicting based on uncorroborated evidence from a single witness, particularly when there are substantial delays in reporting and inconsistencies in the account. The verdict was ultimately that the prosecution had not proved its case beyond reasonable doubt.

The final orders of the court were to acquit Dr. B on both counts of indecent assault. The notional warning was issued to highlight the importance of corroboration in cases involving uncorroborated testimony from a single witness, especially when significant delays and inconsistencies are present.

Orders