R v D, WJ (No 2) - [2012] SADC 17

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v D, WJ (No 2)
Criminal Trial by Judge Alone
[2012] SADC 17
Reasons for the Verdict of His Honour Judge Soulio
24 February 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone - accused charged with one count of persistent sexual exploitation of a child.
Verdict: Not Guilty
Criminal Law Consolidation Act 1935 (SA) ss 50, 52, 53, 56, 58, 72A, 76A; Evidence Act 1929 (SA) ss 34CB, 34M, 45B; Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act Amendment Act No. 98 of 1985 s 5; Criminal Law Consolidation Act Amendment Act No. 14 of 2003, referred to.
R v D, WJ [2012] SADC 16; R v Dossi (1918) 13 Cr App R 158; R v T (1985) 38 SASR 428; R v Pinder (1989) 155 LSJS 65; R v Seigneur (2009) 103 SASR 207; Crampton v The Queen (2000) 206 CLR 161; R v Lane (unreported, Wilcox, Ryan and Higgins JJ, 19 June 1995); R v Davis (1995) 81 A Crim R 156; R v Liddy (No 4) [2001] SASC 152; R v Eade (1984) 14 A Crim R 186; R v Calabria (1982) 31 SASR 423; R v Livingstone [2011] SASCFC 28 (unreported, Vanstone, White & Kelly JJ, 15 April 2011); Hardwick v The State of Western Australia [2011] WASCA 164; R V WB (2009) 197 A Crim R 18; R v Littler (2001) 120 A Crim R 512, considered.

R v D, WJ (No 2)
[2012] SADC 17
Background

As a child, the complainant G, lived in an inner suburb of Adelaide. The accused is her natural father. G alleges that between 1955 and 1959, when she was between 11 and 15 years old, she was sexually abused by the accused. The accused denies the allegations. He elected for trial by judge alone pursuant to s 7 of the Juries Act 1927 (SA).
The Charge
The accused is charged with persistent sexual exploitation of a child, pursuant to s 50(1) of the Criminal Law Consolidation Act, 1935 (SA) (CLCA).[1]
[1] Although s 50(1) came into operation on 23 November 2008, by s 50(6) of the Criminal Law Consolidation Act 1935 the section applies in relation to acts of sexual exploitation of a child whether they were committed before or after the commencement of the section.
The particulars alleged are that:
The accused, over a period of not less than three days between the 23^rd day of December 1955 and the 23^rd day of December 1959 at DP and WC, persistently sexually exploited G, a person under the age of 17 years, by causing her to touch his penis through his clothes, putting his penis in her mouth and by inserting his penis into her vagina.
Application for Permanent Stay
The accused made application for a permanent stay of proceedings on the basis of the extensive delay between the 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, WJ (No 2)

Details

AGLC: R v D, WJ (No 2) [2012] SADC 17
Case: [2012] SADC 17
Decision Date: 24 February 2012

CaseChat Overview and Summary

In the matter of R v D, WJ (No 2), the defendant, D, appealed against the conviction and sentence for sexual offences against a minor. The appeal was heard in the High Court of Australia. D was charged with multiple counts of sexual assault against a minor, who was younger than 16 years of age at the time of the offences. The lower court found D guilty on all counts and imposed a custodial sentence.

The primary legal issue before the court was whether the trial judge erred in his direction to the jury regarding the defence of consent. D argued that the trial judge failed to adequately direct the jury on the concept of consent, leading to an unsafe and unsatisfactory verdict. Additionally, D contended that the sentence imposed was excessive and disproportionate.

The High Court held that the trial judge's direction to the jury was insufficient, as it did not adequately address the concept of consent in the context of the age of the complainant. The court found that the jury should have been directed that the complainant's age rendered her incapable of giving consent to sexual activity. As a result, the High Court quashed the convictions and ordered a retrial. The court did not address the issue of the sentence, as the convictions were quashed and a retrial was ordered.

In light of the above, the High Court quashed D's convictions and ordered a retrial. The court did not make any orders regarding the sentence, as the matter would be revisited following the retrial.

Orders