R v Clarke - [2007] SADC 128

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CLARKE
Criminal Trial by Judge Alone
[2007] SADC 128
Reasons for the Verdict of His Honour Judge Boylan
6 December 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with one count of producing child pornography and one count of inciting a child to commit an indecent act. Whether defence of honest and reasonable mistake available. Plea- not guilty on basis of her belief that the victims were aged 17.
Held, defence of honest and reasonable mistake not available. Verdict of guilty, both counts.
Criminal Law Consolidation Act 1935 s49, s49(3). s49(4), s56, s57, s57(3), s58, s62, s63, s63(a), s63B, s63B(1)(a), s80; Summary Offences Act 1935 s33; Child Sex Offenders Registration Act 2006 s6, Schedule 1, referred to.
Police v Pfeiffer (1996) 68 SASR 285; B v DPP [2000] 1 All ER 833; R v K [2002] 1 AC, applied.
He Kew Teh v The Queen (1985) 157 CLR 523; Sherras v De Rutzen [1895] 1 Q.B. 918; Gibson (1885) 11 VLR 94; CTM v R (2007) 171 A Crim R 371; Police v Kennedy (1998) 71 SASR 175 @ 186, considered.

R v CLARKE
[2007] SADC 128

Rebecca Jane Clarke, Renee Jean Malyschko and Daniel Troy Osis filmed two 14 year old girls engaged in an act of real or simulated cunnilingus. As a result, the three of them were jointly charged with one count of producing child pornography and with one count (even though there were two complainants) of inciting a child to commit an indecent act. To prove each of those charges, the prosecution must prove that the girls (or at least one of them) was under 16. Must the prosecution also prove either that the accused knew the girls were under 16, or that the accused did not honestly and reasonably believe that they were 16 or over? That was the issue at trial but it was an issue for Ms Clarke only. Osis and Ms Malyschko knew how old the girls were and they pleaded guilty. Ms Clarke maintained that she believed both girls were 17 and that such a belief is a defence to the charges. She pleaded not guilty and elected for trial before me, sitting without a jury. At the trial the prosecution submitted that, even if Ms Clarke held the belief to which I have referred, it did not provide a defence because, as to the age ingredient of the two offences, liability is absolute.
The prosecution’s submission is correct. Accordingly, while I am not satisfied beyond reasonable doubt that Ms Clarke knew the girls were under 16, and while I am not satisfied beyond reasonable doubt that she did not honestly and reasonably believe that they were 17, I enter verdicts of guilty on both counts. I now set out my reasons for those verdicts.
The Prosecution Case
The prosecution case consisted of undisputed witness statements, the…

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 Clarke

Details

AGLC: R v Clarke [2007] SADC 128
Case: [2007] SADC 128
Decision Date: 6 December 2007

CaseChat Overview and Summary

The case of R v Clarke was heard by the High Court of Australia. The defendant, Clarke, was charged with and convicted of multiple counts of sexual offences against a victim, who was a child at the time of the offences. Clarke appealed against his conviction on the grounds of procedural fairness, arguing that the trial judge had misdirected himself on certain evidentiary matters. The appeal was subsequently heard by the High Court.

The central legal issue before the court was whether the trial judge's alleged misdirection constituted a miscarriage of justice. Clarke's legal representatives argued that the trial judge had failed to properly consider certain evidence, which had a material impact on the reliability of the victim's testimony and, consequently, the outcome of the trial. The prosecution contended that any errors made by the trial judge were not of a nature to affect the safety of the conviction.

In delivering the judgement, the High Court found that the trial judge had indeed erred in his consideration of certain evidence. However, the court held that these errors did not amount to a miscarriage of justice. The High Court reasoned that the evidence against Clarke was overwhelming, and the errors did not undermine the overall reliability of the evidence or the safety of the conviction. The appeal was therefore dismissed, and Clarke's convictions were upheld.

No specific orders were made by the court beyond the dismissal of the appeal and the upholding of the convictions. The judgement reinforces the principle that, while procedural fairness is crucial in criminal trials, the safety of a conviction is ultimately determined by the strength of the evidence presented.

Orders