R v CW - [2023] SADC 5

District Court of South Australia
(Criminal)
R v CW
Criminal Trial by Judge Alone
[2023] SADC 5
Reasons for the Verdicts of her Honour Judge Fuller
31 January 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
Accused charged with six counts of unlawful sexual intercourse with a person under the age of 17 - offending alleged to have occurred on three separate occasions in November 2020 - complainant 16 years of age - accused and complainant lived in share house with 3 others including owner of house - accused and complainant observed by housemates to spend a lot of time together, including going out to dinners and the accused driving complainant to and from school - evidence of initial complaint and elaboration of complaint to one house mate - owner of house gave evidence that the accused confessed to having had sexual intercourse with complainant after alleged offending came to light.
Held: Evidence of alleged confession rejected - complainant's credibility seriously undermined by proved prior inconsistent statements on material matters and implausibility of explanations for those inconsistencies - complainant unimpressive witness - complainant's evidence rejected where it conflicted with evidence of other prosecution witnesses - unsatisfactory police investigation - complainant's mobile telephone not examined - locations of alleged sexual activity not forensically examined - no evidence corroborating complainant's account of communications of a sexual nature by accused over social media or sexual acts occurring in the share house - evidence of initial complaint and elaboration demonstrated a degree of consistency of conduct but insufficient to overcome cumulative effect of adverse credibility findings.
Verdicts: not guilty on all charges.
Criminal Law Consolidation Act 1935 (SA) ss 49(3); Disability inclusion Act (SA) ss 18A, 18U; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 34L, 34M, 34P(2)(a), referred to.
R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; R v Markuleski (2001) 52 NSWLR 82; Burns v R (1975) 132 CLR 258, considered.

R v CW
[2023] SADC 5
The charges

The accused has been charged on an Information dated 18 November 2022 with the following offences:
Count 1:
Offence Details:
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars
[The accused] on or about the 17th day of November 2020 at Semaphore, had sexual intercourse with [WMN], a person under the age of 17 years, by performing an act of fellatio upon him.
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act 2018.
Count 2:
Offence Details:
Unlawful Sexual Intercourse. (Ibid).
Particulars
[The accused] on or about the 17th day of November 2020 at Semaphore, had sexual intercourse with [WMN], a person under the age…

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 CW

Details

AGLC: R v CW [2023] SADC 5
Case: [2023] SADC 5
Decision Date: 31 January 2023

CaseChat Overview and Summary

The accused was charged with six counts of unlawful sexual intercourse with a person under the age of 17 years. The court accepted the complainant's evidence that he was 16 years of age at the time of the alleged offending and that the accused was aware of this fact. The court rejected the complainant's credibility and found him an unimpressive witness. His evidence was seriously undermined by proved prior inconsistent statements on material matters and implausibility of the explanations given for those inconsistencies. The court was also critical of the unsatisfactory police investigation. The complainant's mobile telephone was not examined and locations of alleged sexual activity were not forensically examined. There was no evidence corroborating the complainant's account of communications of a sexual nature by accused over social media or sexual acts occurring in the share house. The court found the evidence of the complainant's housemate ZS to be more reliable and preferred it over the complainant's evidence. The court found the complainant's evidence regarding the timing of the disposal of the couch, his overall behaviour and demeanour whilst living in the share house, the identity of the person who extended the first invitation out to dinner, whether the complainant locked his door, and whether the statement of 13 January 2023 was the result of a proofing with the prosecutor prior to trial to be inconsistent and untrustworthy. The court found the complainant's explanations for the inconsistencies to be contrived and straining credulity. The court found the evidence of the owner of the share house SC to be biased against the accused. Although the court accepted SC's evidence that the accused had a close relationship with the complainant and may have developed feelings for him, it rejected SC's evidence that the accused confessed to having had sexual intercourse with the complainant. The court found that the complainant's allegations were not corroborated by independent or objective evidence and that his evidence was devoid of any real detail about the accused's physical appearance despite the nature of the sexual activity alleged. The court concluded that the findings made in this matter, and in particular those relating to the complainant's credibility, were such that it was impossible for it to be satisfied beyond a reasonable doubt of the guilt of the accused on any of the six counts charged. The verdicts were not guilty on all charges.

Orders