R v DF (No 3) - [2013] ACTSC 22

R V DF (NO 3)
[2013] ACTSC 22 (19 February 2013)

CRIMINAL LAW – jurisdiction, practice and procedure – trial by judge alone – offence of committing act of indecency on a person between ten and sixteen years – accused not guilty.
CRIMINAL LAW – evidence – complaints – where made by complainant to a number of persons – whether appropriate to give a direction in accordance with R v Murray (1987) 11 NSWLR 12 – direction given.
CRIMINAL LAW – evidence – miscellaneous matters – date of offence – whether particular – whether date can be changed to comply with evidence – not able to change date.

Crimes Act 1900 (ACT), ss 61, 92K, Pt IIIA
Evidence Act 1995 (Cth), s 165B
Evidence Act 2011 (ACT), s 60
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 40, 43
Legislation Act 2001 (ACT), s 102(2)
Supreme Court Act 1933 (ACT), ss 68B, 68C

D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7^th ed, 2011)

DF v The Queen [2011] ACTCA 11
Director of Public Prosecutions v Walker [2011] ACTCA 1
Dossi (1919) 13 Cr App R 158
Fleming v The Queen (1998) 197 CLR 250
Harkin v DPP (1989) 38 A Crim R 296
R v Court [1988] 2 All ER 211
R v DF [2010] ACTSC 31
R v DM [2010] ACTSC 137
R v Elrick [2011] ACTSC 66
R v James (1923) 17 Cr App R 116
R v Morton (1998) 143 FLR 268
R v Mulcahy [2010] ACTSC 98
R v Murray (1987) 11 NSWLR 12
R v Stringer (2000) 116 A Crim R 198
R v Young [1923] SASR 35
Wishart v Fraser (1941) 64 CLR 470

No. SCC 14 of 2008

Judge: Refshauge J
Supreme Court of the ACT

Date: 19 February 2013

IN THE SUPREME COURT OF THE )
) No. SCC 14 of 2008
AUSTRALIAN CAPITAL TERRITORY )

R
V

DF

ORDER

Judge:  Refshauge J
Date:  19 February 2013
Place:  Canberra

THE COURT ORDERS THAT:

DF is not guilty of the charge that between 1 January 1987 and 31 January 1987 at Canberra in the Australian Capital Territory he committed an act of indecency upon a young person, C, the said C being a person above the age of 10 years but below the age of 16 years, namely 15 years.

On 18 September 2006, the complainant, to whom I shall refer as C, spoke to a Victim Liaison Officer of the Australian Federal Police (AFP) about her uncle inappropriately touching her in January 1987.

In January 2007, she gave a statement to officers of the AFP. On 20 June 2007 an information was sworn, charging her uncle, whom I shall call DF, with an offence under s 92K(2) of the then Crimes Act 1900 of the State of New South Wales in its Application to the Australian Capital Territory (ACT) (the Crimes Act). That offence is commonly referred to as committing an act of indecency…

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 DF (No 3)

Details

AGLC: R v DF (No 3) [2013] ACTSC 22
Case: [2013] ACTSC 22
Decision Date: 19 February 2013

CaseChat Overview and Summary

The case of R v DF (No 3) was heard in a court of law where the defendant, DF, was charged with committing an act of indecency on a person, C, who was between ten and sixteen years old. The trial was conducted without a jury. The primary issue for the court was whether DF was guilty of the offence as alleged.

The court needed to address several legal matters, including the appropriate procedure for handling the complainant's allegations and whether a direction under R v Murray was necessary. It was also essential to determine the specific date of the alleged offence and whether it could be adjusted based on the evidence presented. Ultimately, the court determined that the direction under R v Murray was appropriate given the circumstances. However, the court found that the date of the offence could not be altered to fit the evidence provided.

After considering the evidence and applying the relevant legal principles, the court concluded that DF was not guilty of the charge as the prosecution failed to prove the offence beyond reasonable doubt. The court's reasoning focused on the reliability and credibility of the complainant's evidence and the inconsistencies in the timeline of events. Consequently, the court acquitted DF of the charge.

The final order of the court was that DF was not guilty of the offence of committing an act of indecency on C between 1 January 1987 and 31 January 1987 at Canberra in the Australian Capital Territory. This decision was based on the court's assessment of the evidence and the legal principles applied in reaching the verdict.

Orders

Orders of the court

DF is not guilty of the charge that between 1 January 1987 and 31 January 1987 at Canberra in the Australian Capital Territory he committed an act of indecency upon a young person, C, the said C being a person above the age of 10 years but below the age of 16 years, namely 15 years.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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