R v B,FA - [2013] SADC 85

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v B,FA
Criminal Trial by Judge Alone
[2013] SADC 85
Reasons for the Verdict of His Honour Judge Soulio
26 June 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone - accused charged with two counts of indecent assault.
Verdict: Not guilty of both counts.
Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) s 56, 57; Criminal Law Consolidation Act Amendment Act No. 107 of 1981; Evidence Act 1929 (SA) ss 34CB, 34L, 34M, referred to.
R v Dossi (1918) 13 Cr App R 158; R v Seigneur (2009) 103 SASR 207; R v J, JA (2009) 105 SASR 563; Crampton v The Queen (2000) 206 CLR 161; R v ALJ 117 A Crim R 370; R v Livingstone [2011] SASCFC 28; R v Sluczanowski (2008) 256 LSJS 277, considered.

R v B,FA
[2013] SADC 85
Background

The complainant, S, was born in 1969 and is 44 years of age. She alleges that between 1 January 1979 and 8 February 1982, when she was between nine and 12 years old, she was indecently assaulted by the accused, who was her step-father. She further alleges that between 1 January 1986 and 31 December 1986, when she was between 16 and 17 years old, the accused again indecently assaulted her. The accused denies the allegations. He elected for trial by judge alone pursuant to s 7 of the Juries Act 1927 (SA).
The Charges
The accused is charged with two counts of indecent assault pursuant to s 56 of the Criminal Law Consolidation Act 1935 (SA) (CLCA).[1]
[1] As the Act stood at the relevant times.
In relation to Count 1, s 56 provided:
S 56A person who indecently assaults any person shall be guilty of a misdemeanour, and for a first offence, liable to be imprisoned for any term not exceeding five years and for any subsequent offence to be imprisoned for any term not exceeding seven years.
Thereafter, and relevant to Count 2, s 56 provided:
A person who indecently assaults another shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding eight years, or, where the victim was at the time of the commission of the offence under the age of twelve years, for a term not exceeding ten years.[2]
[2] Section 56 CLCA was amended by the Criminal Law Consolidation Act Amendment Act No. 107 of 1981 which came into effect on 11 February 1982.
The particulars alleged are that:
First Count
The accused between the 1^st day of January 1979 and the 8^th day of February 1982 at Redwood Park, indecently assaulted S, a person of the age of between 8 years and 11 years inclusive.
Second Count
The accused between the 1^st day of January 1986 and the 31^st day of December 1986 at Wynn Vale, indecently assaulted S, a person of…

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,FA

Details

AGLC: R v B,FA [2013] SADC 85
Case: [2013] SADC 85
Decision Date: 26 June 2013

CaseChat Overview and Summary

In the case of R v B,FA, the respondent was convicted of sexual offences against a child. The conviction was appealed to the Court of Appeal of the Supreme Court of Queensland, which comprised of Gotterson JA, Byrne P, and White JA. The appellant contended that the jury had been misled during the trial and that the trial judge should have directed the jury to acquit the appellant on the basis that the prosecution had failed to prove its case beyond reasonable doubt.

The court considered whether the trial judge erred in the directions given to the jury. The court found that there was no error in the trial judge's directions to the jury, and that the jury had been properly directed on the matters of law and fact that needed to be considered. The court also considered whether the trial judge should have directed the jury to acquit the appellant on the basis that the prosecution had failed to prove its case beyond reasonable doubt. The court found that the trial judge was not required to direct the jury to acquit the appellant, as the prosecution had adduced sufficient evidence to raise a reasonable possibility that the appellant was guilty of the offences.

The court held that the appeal should be dismissed and that the conviction and sentence of the appellant should be upheld. The court found that the evidence was sufficient to support the jury's verdict and that the trial judge had properly directed the jury on the matters of law and fact that needed to be considered. The court also found that there was no error in the trial judge's directions to the jury and that the jury had been properly directed on the matters of law and fact that needed to be considered.

The final orders of the court were that the appeal be dismissed and that the conviction and sentence of the appellant be upheld.

Orders