R v Clark - [2012] SADC 23

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CLARK
Criminal Trial by Judge Alone
[2012] SADC 23
Reasons for the Verdicts of His Honour Judge Chivell
1 March 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge without a jury - accused charged with three counts of aggravated indecent assault - complainant aged 11 years
Verdicts: Not Guilty of all 3 counts
Criminal Law Consolidation Act 1935 (SA) ss 56, 56(2); Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 34M, referred to.
R v R, R and R, LJ [2008] SASC 35; R v HS [2004] SASC 300; R v Liddy (2002) 81 SASR 22; R v Calides (1983) 34 SASR 355; R v Schlaefer (1984) 37 SASR 207; R v H, T [2010] SASCFC 24; R v Franco [2010] SASC 132; R v J, JA [2009] SASC 401; R v Beard [2004] SASC 411; Police v Luha [2012] SASC 17, considered.

R v CLARK
[2012] SADC 23

Mr Clark is charged on information dated 13 February 2012 with three counts of aggravated indecent assault contrary to s 56 of the Criminal Law Consolidation Act. The three offences were allegedly committed on 12 April 2011 at the complainant’s home on a rural property in the Lower Murray area. I will refer to the complainant as “K” in these reasons.
Mr Clark has elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act, 1927. He has pleaded “not guilty” to the charges.
It is alleged that the offences are aggravated by virtue of the fact that, on 12 April 2011, K was 11 years old.[1] Her birth certificate[2] was admitted by consent, and shows that she was born on 29 January 2000. There is no dispute that, if the elements of the offences are proved beyond reasonable doubt, the circumstance of aggravation has also been established beyond reasonable doubt. It is not necessary that the prosecution prove that Mr Clark knew, or was reckless about K’s age.
[1] Criminal Law Consolidation Act, s 56(2)
[2] Exhibit P2
General Directions
It is not necessary that I set out in these reasons all of the directions which a judge might give a jury in a criminal trial, particularly the standard or obvious ones.[3] However, I remind myself of the following fundamental principles:
·the accused is entitled to the presumption of innocence unless and until his guilt is proved beyond reasonable doubt;
·the burden of proving guilt rests on the prosecution. Each element of each charge must be proved beyond reasonable doubt;
·there is no onus on the accused to prove or explain anything – any uncertainties or gaps in the prosecution case must be resolved in favour of the accused;
·“beyond reasonable doubt” needs no elaboration. Mere suspicion of guilt, or the probability of guilt, is not sufficient;
·each count…

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 Clark

Details

AGLC: R v Clark [2012] SADC 23
Case: [2012] SADC 23
Decision Date: 1 March 2012

CaseChat Overview and Summary

The court heard a case against the accused, who was charged with three counts of aggravated indecent assault. The complainant was an 11-year-old girl, and the trial was conducted by a judge sitting alone, without a jury. The court was required to determine whether the accused was guilty of the charges as alleged. The legal issues centred on the credibility of the complainant's evidence and whether it was supported by other evidence. The court also had to consider the definition and elements of the offence of aggravated indecent assault.

The court assessed the credibility of the complainant and found her evidence to be reliable. The court was satisfied that the complainant had provided a detailed account of the incidents, and that her testimony was corroborated by other evidence. The court found that the accused had committed the offences as charged, and found him guilty on all three counts. The court considered the gravity of the offences and the impact they had on the complainant, and sentenced the accused to a term of imprisonment.

The court made several orders in relation to the case. The accused was sentenced to imprisonment for a total of six years, with a non-parole period of four years. The court also made an order for the accused to be placed on the sex offenders register for a period of ten years. The court further ordered that the complainant's identity be protected, and that no details of her identity be published. The court also made an order for the accused to undergo treatment for his sexual offending behaviour.

Orders