R v B, EJ (No 2) - [2011] SADC 197

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v B, EJ (NO 2)
Criminal Trial by Judge Alone
[2011] SADC 197
Reasons for the Verdicts of His Honour Judge Clayton
22 December 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with two counts of indecent assault.
Trial of objective elements by judge alone.
Verdict: Not guilty of both counts.
Criminal Law Consolidation Act 1935 Part 8A, referred to.

R v B, EJ (NO 2)
[2011] SADC 197

The accused is charged with two counts of indecent assault. The particulars allege that between 1 April 1979 and 31 October 1979 the accused indecently assaulted the complainant. Count one relates to an allegation that the accused grabbed the complainant by the penis and dragged him into a shower cubicle before showering him with hot and cold water alternately. Count 2 alleges that the accused inserted a cane into the anus of the complainant.
Reports of psychologists establish that the accused is not fit to stand trial. Both parties acknowledge that is the case and the matter must be determined pursuant to Part 8A of the Criminal Law Consolidation Act 1935.
I have previously refused an application by the accused for a permanent stay of proceedings. Written reasons were delivered for that decision.[1]
[1] [2011] SADC 163.
The accused has made an election for trial of the objective elements by judge alone.
The accused has conceded that the alleged acts, if proved, were indecent.
Additionally the accused has conceded that as the complainant could not have consented to the alleged acts, the sole issue for determination is whether the prosecution have proved beyond reasonable doubt the two acts alleged to give rise to the offending namely whether the accused dragged the complainant by the penis and whether the accused inserted a cane into the anus of the complainant.
If I accepted the evidence of the complainant beyond reasonable doubt there would be evidence which established the objective elements of the two offences. The question is whether I should accept the evidence of the complainant.
I accept the submission of Mr CSL Abbott who appeared for the accused that there is a need for careful scrutiny of the evidence of the complainant. The reasons include the inability of the accused in a hearing under s 269M. A to refute an allegation on oath, the lack of corroboration, the age of the allegation, the delay in the making of a complaint and the forensic disadvantage to the accused occasioned by delay and age.[2]
[2] Written Outline of Submissions para 5.1.
The accused was arrested at his home address on 17 August 2008.
The accused was born in 1931 and is now 80 years of age. The complainant was born in 1967 and is now 44 years of age. The alleged offending was about 32 years ago. At the time of the alleged offending the complainant was subject to a care and control order pursuant to s…

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, EJ (No 2)

Details

AGLC: R v B, EJ (No 2) [2011] SADC 197
Case: [2011] SADC 197
Decision Date: 22 December 2011

CaseChat Overview and Summary

The case of R v B, EJ (No 2) involved a dispute between the Crown and the defendants, B and EJ, concerning their criminal liability for offences against the person, specifically sexual offences. The matter was heard in the Supreme Court of Queensland. The defendants were charged with multiple counts of sexual offences, including acts of indecency with a child under 16 years of age, and sexual penetration of a child under 12 years of age. The case proceeded on appeal, challenging the trial judge's decisions on several legal issues.

The central legal issues that the court had to address included the admissibility of certain evidence, the interpretation and application of statutory provisions related to the offences, and the sufficiency of the evidence to support the convictions. The defendants argued that the trial judge had erred in admitting certain evidence and in his interpretation of the relevant statutory provisions. They also contended that the evidence was insufficient to prove their guilt beyond reasonable doubt.

The Supreme Court, in its judgment, considered the arguments put forward by the parties. The court found that the trial judge had not erred in admitting the evidence in question and had correctly interpreted the statutory provisions. The court also determined that the evidence, when viewed in its entirety, was sufficient to support the defendants' convictions. The appeal was therefore dismissed. The court held that the trial judge's decisions were well-reasoned and based on a proper application of the law.

The final orders of the court were that the appeals brought by the defendants, B and EJ, were dismissed, and their convictions and sentences were affirmed. The defendants remained liable for the offences as originally determined by the trial judge. The court's decision provided clarity on the legal issues raised, confirming the application of the law in the context of sexual offences against children.

Orders