R v BURGESS - [2009] SADC 105

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BURGESS
Criminal Trial by Judge Alone
[2009] SADC 105
Reasons for the Verdicts of His Honour Judge Brebner
9 October 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with two counts of unlawful sexual intercourse with a person under 14 contrary to s 49(1) of the Criminal Law Consolidation Act 1935 - trial by judge alone - verdicts, not guilty to both counts.
Criminal Law Consolidation Act 1935 (SA) s 49(1); Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 9, s 13, referred to.
Driscoll v The Queen (1977) 137 CLR 517 at 536-537; R v Seigneur (2009) 103 SASR 207; Palmer v The Queen (1998) 193 CLR 1; Spence v Demasi (1988) 48 SASR 536; R v H, ML [2006] SASC 240; Melbourne v The Queen (1999) 198 CLR 1; R v Baker (2000) 78 SASR 103, considered.

R v BURGESS
[2009] SADC 105
Criminal trial by judge alone

The accused is charged with two counts of unlawful sexual intercourse with a female aged less than 14 years contrary to s 49(1) Criminal Law Consolidation Act (1935). He elected for trial by judge alone.
Evidence
The complainant was born on 3 May 1995. She was aged about 10 years and five months at the time when the offences are said to have taken place and 14 years and three months at the time of trial. She has a younger brother. The accused is aged 62. He is the complainant’s step grandfather. He has been married to her maternal grandmother for almost 20 years.
The complainant and her brother have had a disturbed and unfortunate upbringing. Their parents separated when the complainant was about three. Their father died when the complainant was about nine and after his death she and her brother lived with their mother until they were eventually placed in foster care. The complainant has been in foster care ever since. In May 2005 the complainant and her brother went to live in foster care with a Ms Bryant and her husband at Renmark.
The accused and his wife live at Gladstone. During the school holidays in September and October 2005 the complainant and her brother went to stay with their grandmother and the accused. The acts of intercourse on which the charges are based are said to have taken place during the first week of their stay.
The complainant gave evidence that she was sitting on the accused’s lap watching television with him one night. She said she was wearing pyjamas and pants. She said that her grandmother was sitting in an adjacent chair to her left and that her brother was asleep on a nearby couch. She said that the accused slid his hand inside her pants and inserted a finger or fingers into her vagina, she said that she slid downwards, thus disengaging, and that the accused then lifted her…

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 BURGESS

Details

AGLC: R v Burgess [2009] SADC 105
Case: [2009] SADC 105
Decision Date: 9 October 2009

CaseChat Overview and Summary

The case of R v Burgess involved an individual charged with two counts of unlawful sexual intercourse with a person under the age of 14. These charges were brought under section 49(1) of the Criminal Law Consolidation Act 1935. The case was heard in a court presided over by a judge alone, without a jury, and ultimately resulted in a verdict of not guilty on both counts. This summary outlines the essential elements of the case, focusing on the legal principles and procedural aspects relevant to the charges and the outcome.

The primary legal issues the court had to address involved the interpretation and application of section 49(1) of the Criminal Law Consolidation Act 1935, which pertains to unlawful sexual intercourse with a person under the age of 14. The court needed to determine whether the prosecution had sufficiently proved the charges beyond a reasonable doubt. This required an examination of the evidence presented, the credibility of the witnesses, and the application of relevant legal standards to ascertain whether the accused was guilty of the offences as charged.

In reaching its decision, the court meticulously evaluated the evidence presented in the case. It considered the testimonies of witnesses, the credibility of the evidence, and the legal standards applicable to the charges. The judge concluded that the prosecution had not established the guilt of the accused to the requisite standard of beyond a reasonable doubt. As a result, the court entered verdicts of not guilty on both counts. This decision highlights the importance of the prosecution meeting the high standard of proof required in criminal trials, particularly in cases involving serious allegations of sexual offences against children.

No further orders were made by the court beyond the verdicts of not guilty. The accused was acquitted of the charges, and the matter was closed with the judge’s findings that the prosecution had failed to meet its burden of proof. This outcome underscores the rigorous standards that must be met in criminal trials, ensuring that individuals are not wrongfully convicted of serious offences.

Orders