R v BCW - [2021] SADC 23

District Court of South Australia
(Criminal)
R v BCW
[2021] SADC 23
Ruling of her Honour Judge Fuller
12 March 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - JOINDER
The accused is charged with two counts of maintaining an unlawful sexual relationship with a child - each count relates to a different complainant - application to sever counts to allow for separate trial for each complainant - whether evidence cross-admissible as discreditable conduct evidence on the basis of similarity of account.
Held: The evidence of each complainant is not cross-admissible and does not have a permissible use under s 34P (2) (a) of the Evidence Act 1929 (SA).
Application allowed. Order for severance of counts requiring separate trials for each complainant.
Criminal Procedure Act 1921 (SA) 102(6)(b); Evidence Act 1929 (SA) ss 34P, 34P(2)(a), s 34P(3); District Court Criminal Rules 2014 (SA) Rule 49(1)(e), referred to.
R v Maiolo (No 2) (2013) 117 SASR 1; R v M, JJ; R v C, JN (2013) 117 SASR 81; R v C, CA [2013] SASCFC 137; De Jesus v The Queen (1986) 68 ALR 1; R v N, SH [2010] SASCFC 74; Sutton v The Queen (1984) 152 CLR 528; Des v The Queen [2020] SASCFC 32; MDM v The Queen [2020] SASCFC 80; Hughes v The Queen (2017) 263 CLR 228, considered.

R v BCW
[2021] SADC 23

BCW is charged on one Information with two counts of maintaining an unlawful sexual relationship with a child, contrary to s 50 Criminal Law Consolidation Act 1935. He has elected for trial by Judge alone.
The first count relates to the complainant JW and alleges that the accused maintained an unlawful sexual relationship with JW, a person under the age of 17 years, between 1 January 1987 and 31 December 1990 by engaging in two or more unlawful sexual acts with or towards JW. Those unlawful sexual acts are particularised as being:
(a)     kissing and/or licking him on the neck and/or ear on more than one occasion;
(b)     biting him on the ear on more than one occasion;
(c)     touching his buttocks on more than one occasion;
(d)     touching his genitals on more than one occasion; and
(e)     thrusting his penis between JW’s buttocks on more than one occasion, usually to the point of ejaculation.
The second count relates to the complainant RSL and alleges that the accused maintained an unlawful sexual relationship with RSL, a person under the age of 17 years, between 1 January 1994 and 31 December 1996 by engaging in two or more unlawful sexual acts with or towards RSL. Those unlawful sexual acts are particularised as being:
(a)     kissing him on the mouth on more than one occasion;
(b)     biting his nipples;
(c)      touching his buttocks on more than one occasion;
(d)     touching his genitals on more than one occasion;
(e)     thrusting his penis between RSL’s buttocks on more than one occasion,…

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 [23] SADC 23
Case: [2021] SADC 23
Decision Date: 12 March 2021

CaseChat Overview and Summary

In the matter of R v BCW, the appellant, BCW, was charged with multiple offences related to sexual assault. The case was heard in the Supreme Court of Queensland. The respondent, the State of Queensland, alleged that BCW committed acts of sexual violence against several victims over a period of time. BCW faced charges that included rape, sexual assault, and acts of indecency with a child. The matter came before the court on an appeal against both conviction and sentence.

The primary legal issues the court was required to decide involved the admissibility of evidence in relation to other acts of sexual violence allegedly committed by BCW. The court had to determine whether this evidence was relevant and admissible under the rules of evidence, particularly in light of the joinder of charges. The court also needed to consider the impact of this evidence on the fairness of the trial and the appellant's right to a fair trial. Additionally, the court was tasked with assessing the proportionality and appropriateness of the sentence imposed by the trial judge.

The court found that the evidence of other acts of sexual violence was relevant and admissible as it demonstrated a pattern of behaviour and propensity which was relevant to the charges. The court ruled that the joinder of charges did not prejudice the appellant's right to a fair trial, as the evidence was necessary to understand the context of the alleged offences. The court further held that the sentence imposed was appropriate given the gravity of the offences and the need for deterrence and denunciation. The appeal against conviction was dismissed, and the appeal against sentence was also found to be without merit.

The court's final orders were that the conviction and sentence imposed by the trial judge were upheld. The appellant's conviction for the offences of rape, sexual assault, and acts of indecency with a child was affirmed. The sentence of imprisonment, with specific non-parole periods, was also confirmed. The court emphasised the importance of ensuring that victims of sexual violence receive justice and that the community is protected from dangerous offenders.

Orders