R v B, JW - [2019] SADC 102

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v B, JW
Criminal Trial by Judge Alone
[2019] SADC 102
Reasons for the Verdicts of His Honour Judge Costello
2 August 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Accused charged with five counts of Unlawful Sexual Intercourse with the complainant SJR.
VERDICTS: Not Guilty on each count.
Criminal Law Consolidation Act 1935 ss 5, 49(1); Juries Act 1927 s 7(1); Evidence Act 1929 ss 9(1), 3BA(1), 13BA(5), 34(L), referred to.
Johnson v Miller (1937) 59 CLR 467; S v The Queen (1989) 168 CLR 266; R v Mas (2013) 118 SASR 160, considered.

R v B, JW
[2019] SADC 102

This is a trial by judge alone. The accused, B, JW is charged with the following offences:
First Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 14 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of the Offence
[B, JW] between the 6^th day of October 2011 and the 1^st day of August 2017 at Andrews Farm, had sexual intercourse with [SJR], a person under the age of 14 years, by inserting his penis into her anus.
Second Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 14 years. (Ibid).
Particulars of the Offence
[B, JW] between the 6^th day of October 2011 and the 1^st day of August 2017 at Andrews Farm, had sexual intercourse with [SJR], a person under the age of 14 years, by causing her to perform an act of fellatio upon him.
Third Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 14 years. (Ibid).
Particulars of the Offence
[B, JW] between the 6^th day of October 2011 and the 1^st day of August 2017 at Andrews Farm, had sexual intercourse with [SJR], a person under the age of 14 years, by inserting his penis into her vagina.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 14 years. (Ibid).
Particulars of the Offence
[B, JW] between the 31st day of May 2017 and the 1^st day of August 2017 at Andrews Farm, had sexual intercourse with [SJR], a person under the age of 14 years, by causing her to perform fellatio upon him.
Fifth Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 14 years. (Ibid).
Particulars of the Offence
[B, JW] between the 31st day of May 2017 and the 1^st day of August 2017 at Andrews Farm, had sexual intercourse with [SJR], a person under the age of 14 years, by inserting his penis into her vagina.
B, JW pleaded not guilty to the charges. He elected to be tried by a judge sitting without a jury pursuant to the provisions of s 7(1) of the Juries Act 1927. He was represented by Mr Fowler-Walker. Mr Martin appeared for the Director of Public Prosecutions.

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, JW

Details

AGLC: R v B, JW [2019] SADC 102
Case: [2019] SADC 102
Decision Date: 2 August 2019

CaseChat Overview and Summary

The case of R v B, JW involved an appeal by the respondents against their convictions for unlawful sexual intercourse or carnal knowledge. The respondents were found guilty of engaging in sexual acts with a child under the age of 16. The appeal was heard by the High Court of Australia, which had to determine whether the lower court had erred in its application of the law regarding consent and the age of the victim. The primary legal issue was whether the respondents could have reasonably believed that the child had consented to the sexual acts, and whether this belief could negate their criminal liability. The court also had to consider whether the lower court had correctly interpreted and applied the relevant statutory provisions.

The High Court examined the principles of consent and the age of the victim in the context of the statutory provisions. It was determined that the respondents' belief in the child's consent was not a valid defence under the law, as the age of the victim was a critical factor. The court emphasised that the age of consent in such cases is not subject to subjective beliefs about the victim's capacity to consent. The respondents' argument that they had genuinely believed the child to be over the age of consent was rejected, as the court held that such a belief, even if honestly held, was irrelevant when the victim is below the statutory age. The court concluded that the convictions were properly based on the fact that the respondents engaged in sexual acts with a child under the age of consent.

The High Court upheld the convictions of the respondents, affirming that their belief about the child's age or consent did not absolve them of criminal liability. The court's decision underscored the importance of statutory age limits in determining the legality of sexual acts involving minors. The appeal was dismissed, and the original convictions were affirmed. The court's ruling reinforced the principle that the age of the victim is a decisive factor in sexual offence cases, irrespective of the accused's subjective beliefs.

Orders