R v BALL - [2009] SADC 40

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BALL
Criminal Trial by Judge Alone
[2009] SADC 40
Reasons for the Verdicts of His Honour Judge Chivell
1 April 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Three counts of unlawful sexual intercourse - Trial by judge alone - Complainant aged five or six at time of alleged offences - Uncharged sexual acts alleged - No corroboration - Delay of 12-13 years until matters reported to police - Longman warning - Verdicts - Counts 1, 2 and 3 - Not Guilty
Criminal Law Consolidation Act, 1935 s49(1); Evidence Act, 1929 s34I, referred to.
R v Seigneur [2009] SASC 59; R v R,R & R,LJ [2008] SASC 35; R v HS [2004] SASC 300; R v Liddy (2002) 81 SASR 22; Longman v The Queen (1989) 168 CLR 79; R v Corrigan (1998) 74 SASR 454; R v Smith [1999] SASC 109; Director of Public Prosecutions v Kilbourne [1973] AC 729; Doney v The Queen (1990) 171 CLR 207; R v Matthews & Burgess [2005] SASC 289; RPS v R [2000] HCA 3; Doggett v The Queen (2001) 208 CLR 343; R v BFB (2003) 87 SASR 278; R v Wilson (No 2) [2007] SASC 129, applied.

R v BALL
[2009] SADC 40
INTRODUCTION

The accused is charged on Information dated 2 June 2008 with three counts of unlawful sexual intercourse with a person under 12, an offence against s49(1) of the Criminal Law Consolidation Act, 1935. It is alleged that, at the time of the offences, the complainant was aged five or six years, and that she was the daughter of the de facto partner of the accused.
The accused elected to be tried by a judge sitting without a jury pursuant to s7 of the Juries Act, 1927.
The Information was filed in this court prior to 23 November 2008, and hence the provisions of the Statutes Amendment (Evidence and Procedure) Act 2008 do not apply (see R v Seigneur [2009] SASC 59).
I will refer to the alleged victim of these offences, the complainant, as “C”. C gave evidence while accompanied by a Victim Support Officer, an employee of the Director of Public Prosecutions, and while the court room was closed to the general public. These measures were taken pursuant to s13 of the Evidence Act. C’s mother, to whom I will refer as M, also gave evidence. A screen was placed between the witness box and the dock while she gave evidence, pursuant to the same section.
I record that I have not drawn any inference adverse to the accused, and have not allowed these arrangements to influence the weight to be given to the evidence given by either of these witnesses as a result of these measures being adopted.
GENERAL DIRECTIONS
The Court of Criminal Appeal has stated that it is not necessary…

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 BALL

Details

AGLC: R v Ball [2009] SADC 40
Case: [2009] SADC 40
Decision Date: 1 April 2009

CaseChat Overview and Summary

In the case of R v Ball, the respondent was charged with three counts of unlawful sexual intercourse. The offences were alleged to have occurred against a complainant who was five or six years old at the time of the incidents. The trial was conducted before a judge sitting alone, without a jury. The complainant did not directly allege the charged offences but instead recounted other uncharged sexual acts. The Crown did not provide any corroboration of the complainant's evidence, and the incidents were not reported to the police until 12-13 years after they were alleged to have occurred.

The court had to determine whether the Crown had established the guilt of the respondent beyond reasonable doubt. Given the complainant's age at the time of the alleged offences, the lack of corroboration, the significant delay in reporting the incidents, and the nature of the testimony provided, the court considered whether the evidence was reliable and sufficient to convict. The Longman warning was also relevant, as it cautioned against convicting based on uncorroborated testimony from a child complainant.

After careful consideration of the evidence and the applicable legal principles, the judge concluded that the Crown had not proved the guilt of the respondent beyond reasonable doubt. The court found that the evidence was insufficient to support a conviction on any of the three counts of unlawful sexual intercourse. The judge issued verdicts of not guilty on all counts. The court emphasised the importance of corroboration, particularly in cases involving child complainants and significant delays in reporting. The respondent was acquitted on all charges.

Orders