R v D, WD

[2013] SASCFC 32

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v D, WD

[2013] SASCFC 32

Judgment of The Court of Criminal Appeal

(The Honourable Justice Anderson, The Honourable Justice Peek and The Honourable Justice Nicholson)

3 May 2013

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - OTHER MATTERS

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - GENERALLY

CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY

The appellant was convicted after a trial by judge alone of three counts of unlawful sexual intercourse contrary to s49(3) of the Criminal Law Consolidation Act 1935 (‘the Act’) (counts 1,3, and 4), and one count of common assault contrary to s 39 of the Act (count 2).

Section 49(3) was amended twice and took three different forms during the period particularised for two of the counts (counts 3 and 4). The trial judge was satisfied that count 3 and 4 were established. However, no findings as to which of the different forms of the offence was committed were made nor, on the state of the evidence, would it have been possible to do so.

The primary issues on appeal were: (1) whether the Judge erred in fact and in law in accepting the complainant’s evidence such as to render the finding of guilt for each of the counts 1 to 4 a miscarriage of justice; (2) whether counts 3 and 4 as pleaded were duplicitous or uncertain; (3) whether the power conferred on the Court of Criminal Appeal by s354(2) to substitute a conviction for a lesser offence upon setting aside a conviction following trial by jury also extends to a conviction following a trial by judge alone; and (4) whether, in the circumstances of this case, the power to substitute convictions for unlawful sexual intercourse should be exercised.

Held: Appeal allowed in part. (1) the appeal with respect to count 1 is dismissed; (2) the appeal with respect to count 2 is dismissed; (3) the appeal with respect to count 3 is allowed in part with the verdict of guilty of unlawful sexual intercourse quashed but a verdict of guilty of indecent assault entered in substitution; (4) the appeal with respect to count 4 is allowed in part with the verdict of guilty of unlawful sexual intercourse quashed but a verdict of guilty of indecent assault entered in substitution.

Criminal Law Consolidation Act 1935 s13A, s14,19B, s24, s25, s39, s49, s56, s75, s274, s277, s352, s353, s354, Rule 4 of Schedule 3; Statutes Amendment (Sentencing of Sex Offenders) Act 2005 s11, s12; Statutes Amendment (Justice Portfolio) Act 2006 s15; Juries Act Amendment Act 1984 s5; Statutes Amendment and Repeal (Aggravated Offences) Act 2005 s26; Acts Interpretation…