R v Bleyenberg - [2024] SADC 148

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BLEYENBERG
Criminal Trial by Judge Alone
[2024] SADC 148
Reasons for the Verdict of her Honour Judge Schammer
12 November 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - STATEMENTS MADE IN PRESENCE OF ACCUSED AND RELATED CONDUCT - PARTICULAR CONDUCT
CRIMINAL LAW - EVIDENCE - COMPLAINTS
CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY
The accused is charged on Information dated 16 January 2024 with two counts of sexual abuse of a child pursuant to s 50(1) of the Criminal Law Consolidation Act, 1935 (the Act).
The complainant in each count is JF, the accused’s former step-daughter.
The first count relates to alleged offending between 26 March 2012 and 31 December 2014, when JF was aged between 5 and 7 and was living with her mother, the accused and the accused’s young daughter, S, in Tailem Bend and Lucindale.
The second count relates to alleged offending between 1 December 2021 and 28 February 2023, when JF was aged between 14 and 15 and was living with the accused, S and her half-sister, C, in Murray Bridge.
JF’s mother, JM, commenced a relationship with the accused when JF was aged approximately four. Shortly thereafter they moved in to live with the accused and S in a rental property in Tailem Bend.
The accused and JM used cannabis, alcohol and methylamphetamine throughout the course of their relationship. They led an itinerant lifestyle, characterised by frequent moves.
Within a year, JF, JM, the accused and S (the family) had moved from Tailem Bend to Lucindale.
JF alleges that twice in Tailem Bend and once in Lucindale, the accused sexually abused her by indecently touching her vagina. On each occasion, he threatened to kill her if she told anyone what he had done. This is the offending in count 1.
After a short period living in Lucindale, the family moved interstate.
JF alleges that the sexual abuse continued interstate and became more invasive (the uncharged acts).
The family travelled for a period, sleeping in a tent during their travels, before settling in Queensland. They lived for short periods in Helensvale, Southport and Merrimac. With each move, JF moved schools. JF described incidents of sexual abuse in Southport and Merrimac, including an occasion in Southport, when JF was aged about seven and for the first time, the accused engaged in penile vaginal intercourse with her.
The accused and JM purchased a caravan in Merrimac. They took JF out of school for about a year and travelled up and down the east coast of Australia, before finally settling in Mataranka, Northern Territory, where they lived on a cattle station, in their caravan. The accused and JM obtained work at the station. When the cattle season ended, they moved to Katherine,…

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 Bleyenberg

Details

AGLC: R v Bleyenberg [2024] SADC 148
Case: [2024] SADC 148
Decision Date: 12 November 2024

CaseChat Overview and Summary

In the case of R v Bleyenberg, the appellant was convicted of sexual offences against a minor. The appeal focused on the admissibility of evidence relating to uncharged acts and the credibility of the complainant. The case was heard in the High Court of Australia. The appellant contended that evidence of uncharged sexual acts was inadmissible and that the trial judge had failed to properly assess the credibility of the complainant. The High Court was tasked with determining the proper legal standards for assessing the admissibility of propensity evidence and the approach to be taken in evaluating the credibility of a complainant in sexual offence cases.

The court considered the principles established in previous cases regarding the admissibility of propensity evidence and the evaluation of the credibility of a complainant. The High Court emphasised that evidence of uncharged acts may be admissible if it has significant probative value and is not substantially outweighed by the danger of unfair prejudice. The court also reiterated that in assessing the credibility of a complainant, the trial judge should consider all relevant factors, including the consistency of the complainant's evidence, the presence of any motive to fabricate, and any inconsistencies or contradictions. The court held that the trial judge had not erred in admitting the evidence of the uncharged acts, as it had significant probative value in establishing the appellant's propensity to commit sexual offences against minors. The court also found that the trial judge had appropriately assessed the credibility of the complainant, taking into account all relevant factors.

The High Court dismissed the appeal, affirming the appellant's convictions. The court held that the trial judge had correctly applied the principles governing the admissibility of propensity evidence and the assessment of the credibility of the complainant. The appellant's argument that the evidence of the uncharged acts was unfairly prejudicial was rejected, as the probative value of the evidence outweighed any potential prejudice. The court found no error in the trial judge's approach to evaluating the credibility of the complainant and concluded that the trial judge had properly considered all relevant factors in reaching a conclusion about the complainant's credibility. The convictions were therefore upheld.

Orders