R v BCW - [2022] SADC 68

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BCW
Criminal Trial by Judge Alone
[2022] SADC 68
Reasons for the Verdict of her Honour Judge Schammer
31 May 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with one count of Maintaining an Unlawful Sexual Relationship with a child pursuant to s 50(1) of the Criminal Law Consolidation Act 1935.
The complainant, RSL, met the accused, BCW, in 1994, when RSL was in Year 8 at school. The accused was a teacher at RSL’s school, but never taught RSL, nor was RSL in his care group. RSL’s parents had separated when he was young, and he was living with his mother and two of his brothers in impoverished circumstances. RSL’s mother struggled with a gambling addiction and alcoholism.
RSL first met BCW outside of the school grounds, but during school hours. The precise circumstances in which RSL met the accused were in dispute.
However, after their first meeting, the accused attended at RSL’s family home, out of school hours, including on Saturday mornings, at which time he paid RSL to wash his car, while he talked to RSL’s mother. The accused allowed RSL to use his school canteen account in exchange for doing odd jobs for him at the school. The period during which the accused visited RSL’s home and allowed him to use his school canteen account, was disputed.
RSL claims that the accused abused him on two occasions at school, when he was in Year 8, in a storeroom attached to the art room. RSL claims that thereafter, over a period of approximately 12 months commencing in either late 1994 or early 1995, the accused abused him at various houses, all of which had an association with the accused’s family and on one occasion in a car near Flinders University. The abuse is said to have occurred in the context of the accused having earned RSL’s mother’s trust, during his visits to the family home, such that she would allow RSL to accompany the accused on outings on Saturday afternoons and occasionally to stay away overnight with the accused, at which times the abuse occurred.
RSL’s evidence demonstrated he had esoteric knowledge about matters personal to the accused, said to have been gleaned as a result of his relationship with the accused between 1994 and 1996 and the abuse occasioned on him by the accused.
During cross-examination of RSL, counsel for the accused questioned RSL about the circumstances of an incident which occurred in February 2009, when RSL attended the accused’s home and assaulted the accused (the 2009 assault). This evidence was introduced to challenge RSL’s credit.
During the 2009 assault, RSL rang his father and demanded the accused tell his father what he had done to him. The accused told RSL’s father that he had abused RSL when RSL was a child. There is no dispute that the accused did so under duress, such that this was not…

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 BCW

Details

AGLC: R v BCW [2022] SADC 68
Case: [2022] SADC 68
Decision Date: 31 May 2022

CaseChat Overview and Summary

In the case of R v BCW, the defendant was convicted of various drug-related offences, including possession and supply of dangerous drugs. The matter was heard and determined in the County Court of Victoria. The defendant sought to appeal the decision on the grounds that there was an irregularity in the process which led to the suppression of evidence, and that the trial judge had erred in admitting certain evidence.

The court was required to consider whether the suppression of evidence was justified under the circumstances and whether the trial judge's admission of evidence was in accordance with the law. The court also considered whether the irregularity in the process was significant enough to warrant a new trial. The court had to weigh the prejudicial effect of the suppressed evidence against the potential for unfairness if the evidence was admitted.

The court found that the suppression of evidence was justified as it was necessary to protect the identity of a confidential informant. The court also found that the trial judge had not erred in admitting the evidence that was presented. The court held that the irregularity in the process did not warrant a new trial as it did not affect the outcome of the trial. The appeal was therefore dismissed.

The court did not make any further orders. The conviction and sentence of the defendant remain in place.

Orders