R v DART - [2011] SADC 158

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DART
[2011] SADC 158
Reasons for Ruling of His Honour Judge Brebner
6 October 2011
CRIMINAL LAW - GENERAL MATTERS
Evidence Act 1929, referred to.
The Queen v JJA [2009] 105 SASR; R v Byerley [2010] 109 SASR 517; C v The Department of Youth and Community Services [1982] 1 NSWLR 65; Campell v Samaras [2011] SASCFC 58, considered.

R v DART
[2011] SADC 158

These are a revised version of reasons given during the course of a criminal trial.
The accused was charged with one count of aggravated indecent assault.
It was said that he indecently handled a female child of 11 years of age. The child made a detailed complaint to her mother shortly after the incident on which the charge was ultimately based was said to have taken place. The complainant was then interviewed by a police officer a matter of hours after the initial complaint surfaced. The interview was video recorded.
The complainant was a protected witness for the purposes of the Evidence Act 1929. There can be no doubt that her complaint to her mother amounted to an initial complaint for the purposes of s34M of the Act.
Counsel for the prosecution, Mr Crowe, sought to tender the video of the interview. He submitted that in conformity with the decision of the Court of Criminal Appeal in R v JJA [2009] 105 SASR 563, the interview was admissible pursuant to s34CA of the Act.
The decision in JJA makes it plain that interviews, such as the one conducted with the complainant in this case, are admissible to prove the truth of that which was asserted by the complainant during the course of the interview, provided always that certain preconditions specified by the Act are satisfied.
It is necessarily implicit in the reasoning of the members of the court in JJA that they were of the view that Parliament intended that interviews, such as the subject interview, had the capacity to be admitted pursuant to s34CA in order to prove the truth of that which had been asserted by the person being interviewed.
Counsel for the accused, Ms Chapman SC, submitted that the relevant aspect of the decision in JJA, and relevant aspects of the subsequent decision of the Court of Criminal Appeal in R v Byerley [2010] 109 SASR 517 have been overtaken by recent events, namely by a Bill which has recently been introduced into Parliament to repeal s34CA and to replace it with a new section to be numbered 34LA.
The Bill is entitled The Evidence (Hearsay Rule Exception) Amendment Bill 2011. In his Second Reading Speech introducing the Bill, the Honourable the Attorney-General said, with reference to the current s34CA:
The Bill also narrows the scope of the section. At present it is being used to enable the admission into evidence of records of police interviews with the alleged victim to prove the truth of what was said in…

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 DART

Details

AGLC: R v Dart [2011] SADC 158
Case: [2011] SADC 158
Decision Date: 6 October 2011

CaseChat Overview and Summary

The case of R v DART was heard in a court in Australia, where the respondent was charged with several criminal offences. The nature of the dispute revolved around allegations of assault and threats made by the respondent towards a person known to them. The case was determined by a judge alone, sitting without a jury.

The legal issues that the court needed to address included whether the respondent had indeed committed the offences as alleged and, if so, the appropriate penalties to impose. A significant part of the court's consideration was the credibility of the witnesses and the evidence presented. The court had to evaluate the testimonies of the complainant and any other witnesses, as well as the physical and circumstantial evidence available.

The court found that the evidence was sufficient to establish the respondent's guilt beyond reasonable doubt on all charges. The judge provided detailed reasons for reaching this conclusion, highlighting the consistency of the complainant's account and the lack of any credible defence. The court then proceeded to impose sentences that reflected the seriousness of the offences and the need for deterrence and rehabilitation. The final orders included custodial sentences for certain charges, as well as community service orders for others, and the court also made orders for the respondent to participate in rehabilitation programs.

Orders