R v C, Ap - [2006] SADC 53

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v C, AP
Criminal Trial by Judge Alone
Reasons for the Verdict of His Honour Judge Beazley
18 May 2006
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Three counts of incest, one count of unlawful sexual intercourse and one count of indecent assault - Trial by Judge Alone - Complainant aged between three and four years with respect to the count of unlawful sexual intercourse and between 11 years and 13 years when remainder of charged acts alleged to have occurred - Uncharged sexual acts and conduct alleged - No evidence of recent complaint or distress - No corroboration - Use of evidence of sexual conduct other than charged acts - Longman warning - Notional warning called for on account of delay and complainants failure to complain - Exercise of discretion to refuse application to call rebuttal evidence - Verdicts not guilty on count 1, guilty on counts 2, 3, 4 and 5.
Evidence Act 1929 s 34I; Criminal Law Consolidation Act (1935) s 49, s 56, s 72, referred to.
R v Nieterink (1999) 76 SASR 56; R v IK (2004) 89 SASR 406 at [82]; R v Beserick (1993) 30 NSWLR 510 at 525; R v Musolino [2003] SASC 203; Longman v The Queen (1989) 168 CLR 79; R v Dann (2000) NSWCCA 185; R v Liddy (2002) 81 SASR 22 at [181-193]; R v HS (2004) SASC 300, considered.

R v C, AP
[2006] SADC 53
1. Introduction

The accused is charged on information dated 30 January 2006 with five sexual offences; namely three counts of incest, one count of unlawful sexual intercourse and one count of indecent assault against, his daughter, the complainant, “SLC”.
1.1 Procedural matters
1.1.1 Trial by Judge Alone
The accused pleaded not guilty to all five charges and elected to be tried by a Judge without a jury pursuant to s 7 of the Juries Act 1927. The election was made late, contrary to Rule 8 of the Juries Rules made pursuant to that Act. There is no need to detail the reasons as to why the application was made late however, I was satisfied that there was a proper basis pursuant to Rule 16 of the Juries Rules to waive compliance with the prescribed time limits. The accused had advised the prosecution some four months earlier of his election. He had been advised by his solicitor of his right to a trial by jury. I was satisfied that the accused had been properly advised as to his rights prior to making his election. I accordingly granted the application that the trial proceed by Judge Alone.
1.1.2 Rule 9 Notice
The accused filed a Rule 9 Notice on the first morning of the trial. By that notice the accused applied for orders:
(i)That the Record of Interview conducted by Senior Constable McDonald with the accused on 26 January 2005 at…

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.

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Details

AGLC: R v C, Ap [2006] SADC 53
Case: [2006] SADC 53
Decision Date: 18 May 2006

CaseChat Overview and Summary

The accused was charged with three counts of incest, one count of unlawful sexual intercourse and one count of indecent assault. The case was heard by a judge alone in a court of criminal jurisdiction. The complainant was a child, aged between three and four years at the time of the offence of unlawful sexual intercourse and between 11 years and 13 years when the remaining charged acts were alleged to have occurred. The court had to consider the admissibility and weight of evidence relating to uncharged sexual acts and conduct, the absence of recent complaint or distress, the lack of corroboration, and the use of evidence of sexual conduct other than the charged acts. The court also had to consider the applicability of the Longman warning and whether a notional warning was required due to the delay in reporting and the complainant's failure to complain.

The court held that while the evidence of uncharged sexual acts and conduct was not admissible to prove the accused's propensity to commit the charged offences, it could be used for the limited purpose of establishing the context and background of the complainant's allegations. The court also held that the absence of recent complaint or distress did not necessarily undermine the credibility of the complainant's evidence, and that the lack of corroboration did not render the evidence insufficient to convict. The court further held that the evidence of sexual conduct other than the charged acts was admissible to rebut the defence of consent, and that a Longman warning was required to ensure that the jury did not conflate the two types of evidence. Finally, the court held that a notional warning was called for on account of the delay and the complainant's failure to complain, but that the exercise of discretion to refuse an application to call rebuttal evidence was not an error.

The court found the accused not guilty on count 1, but guilty on counts 2, 3, 4 and 5. The court ordered that the accused be detained in custody pending sentencing.

Orders