R v B, EW - [2023] SADC 167

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v B, EW
Criminal Trial by Judge Alone
[2023] SADC 167
Reasons for the Verdicts of her Honour Judge Fuller
6 December 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
Accused charged with 2 counts of aggravated indecent assault and 4 counts of indecent assault. Complainant was accused's granddaughter, who was born in June 1999. Count 1 alleged to have occurred in 2008 involving touching of vagina (and uncharged acts of touching breasts). Complainant made complaint to mother and then interviewed by police and accused charged with aggravated indecent assault in 2009. No evidence tendered by prosecution on that charge some months later. Contact with accused eventually resumed and some time later the accused touched the complainant multiple times on breasts over clothing or under clothing and over bra. All offending alleged to have occurred in accused's home. Complainant reported matter to police in 2019 and accused charged with 2008 offending and indecent assaults alleged to have occurred between June 2012 and June 2015.
Proved prior inconsistent statements on material matters and complainant's account of timing of counts 2 - 6 unreliable. Accused denied offending in two records of interview in 2009 and 2020.
Charges not proved beyond reasonable doubt.
Verdicts: Not guilty of counts 1 - 6.
Criminal Law Consolidation Act, 1935 (SA) s 56; Juries Act 1927 (SA) s 7; The Evidence Act 1929 (SA) s 13, s 13(7), referred to.
R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; Azzopardi v R (2001) 205 CLR 50 at [51]; R v Weetra (2010) 108 SASR 232 at [67]; R v Cassebohm (2011) 109 SASR 465, [30]; R v Maiolo (No 2) (2013) 117 SASR 1; R v W, PK [2016] SASCFC 5; R v R, PA [2019] SASCFC 19; IMM v The Queen [2016] HCA 14 at [60]; The Queen v Bauer [2018] HCA 40, considered.

R v B, EW
[2023] SADC 167

The accused is charged on Information with the following offences:
First Count
Statement of Offence
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[The accused] between the 1^st day of November 2008 and the 17^th day of November 2008 at Plympton Park, indecently assaulted [TB] by touching her vagina.
It is further alleged that [TB] was under the age of 14 years at the time of the offence.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Second Count
Statement of Offence
Aggravated Indecent Assault. (Ibid).
Particulars of Offence
[The accused] between the 12^th day of June 2012 and the 11^th day of June 2013 at Plympton Park indecently…

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.

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Details

AGLC: R v B, EW [2023] SADC 167
Case: [2023] SADC 167
Decision Date: 6 December 2023

CaseChat Overview and Summary

The accused was charged with six counts of sexual offences against his granddaughter, TB, including aggravated indecent assault and indecent assault. The trial took place before Judge Fuller in the District Court of South Australia. The court heard evidence from TB, the complainant, her mother VG, and the accused. The accused denied all charges. The central issue in dispute was whether the alleged offending as described by the complainant in fact occurred. The court found TB's evidence to be unreliable on several matters, including the frequency of her visits to the accused's house and the timing of the alleged offending. The court also found that the accused had suffered a significant forensic disadvantage due to the delay in prosecuting the charges and the loss of certain evidence. Based on the whole of the evidence, the court was not satisfied beyond reasonable doubt of the accused's guilt on any of the charges. The verdicts were not guilty on all counts.

Orders