R v D, C - [2013] SADC 168

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v D, C
Criminal Trial by Judge Alone
[2013] SADC 168
Reasons for the Verdict of His Honour Judge Soulio
13 December 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone - accused charged with three counts of unlawful sexual intercourse.
Verdict: Not Guilty on all counts.
Criminal Law Consolidation Act 1935 (SA) s 49; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 34CB, 34M, 34P, referred to.
R v Dossi (1918) 13 Cr App R 158; R v Seigneur (2009) 103 SASR 207; R v Davis (1995) 81 A Crim R 156; R v Liddy (No 4) [2001] SASC 152; R v Lane (unreported, Wilcox, Ryan and Higgins JJ, 19 June 1995); R v H,T (2010) 108 SASR 86; R v S,DD (2010) 109 SASR 46; R v J,JA (2009) 105 SASR 563; R v Maiolo (No 2) (2013) 117 SASR 1; Dyers v The Queen (2002) 210 CLR 285, considered.

R v D, C
[2013] SADC 168
Background

The accused elected for trial by judge alone, pursuant to s 7 of the Juries Act 1927 (SA), in relation to charges of unlawful sexual intercourse. The complainant, TH, was born in 1992 and at the time of trial was 21 years of age. He alleges that during a period between May 2004 and May 2005, when he was 12 or 13 years old, the accused, who was the complainant’s scoutmaster, performed fellatio upon the complainant on two occasions, and had TH perform anal sexual intercourse upon the accused.
The Charges
The Information
The accused is charged with three counts of unlawful sexual intercourse pursuant to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’).[1]
[1] The accused was originally charged with four counts of unlawful sexual intercourse but at trial nolle prosequi was entered in relation to Count 1. I refer to the remaining three counts as 1, 2 and 3.
The particulars alleged are that:
First Count
The accused, between the 18^th day of May 2004 and the 31^st day of May 2005 at Modbury, had sexual intercourse with TH, a person of or above the age of 12 years and under the age of 17 years, by performing an act of fellatio upon TH.
Second Count
The accused, between the 18^th day of May 2004 and the 31^st day of May 2005 at Modbury, had sexual intercourse with TH, a person of or above the age of 12 years and under the age of 17 years, by performing an act of fellatio upon TH.
Third Count
The accused, between the 18^th day of May 2004 and the 31^st day of May 2005 at Modbury, had anal sexual intercourse with TH, a person of or above the age of 12 years and under the age of 17 years.
An exact date is not alleged…

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 D, C

Details

AGLC: R v D, C [2013] SADC 168
Case: [2013] SADC 168
Decision Date: 13 December 2013

CaseChat Overview and Summary

In the matter of the criminal case of the Commonwealth of Australia versus D and C, the defendants were convicted of sexual offences against the complainant, who was a minor. The case was heard and determined by the Supreme Court of Queensland. The defendants appealed against their convictions, arguing that the trial judge had erred in several respects, including the admissibility of certain evidence and the direction given to the jury regarding the assessment of the complainant's credibility.

The legal issues before the court were primarily concerned with the admissibility of evidence of the complainant's prior sexual history and the trial judge's direction to the jury regarding the assessment of her credibility. The defendants argued that the evidence was inadmissible as it was irrelevant and prejudicial, and that the direction given to the jury was misleading and improper. The Crown, on the other hand, submitted that the evidence was relevant to the issues in the case and that the direction was a correct statement of the law.

In determining the appeal, the court considered the relevant legal principles and authorities. The court held that the evidence of the complainant's prior sexual history was properly admitted as it was relevant to the issue of consent, and that the trial judge's direction to the jury was a correct statement of the law. The court further held that the trial judge had not erred in admitting the evidence or in giving the direction, and that the convictions should be upheld. The appeal was therefore dismissed.

The final orders of the court were that the appeal be dismissed, and that the convictions of the defendants be upheld. The defendants were ordered to pay costs of the appeal to the Crown.

Orders