R v EG - [2002] ACTSC 85

THE QUEEN v EG [2002] ACTSC 85 (28 August 2002)

CATCHWORDS

CRIMINAL LAW – trial by judge alone - meaning of “act of indecency” – relevance of motive or purpose.
EVIDENCE – unsworn evidence by child in trial for sexual assault – whether corroboration required – considerations affecting weight of the evidence.

Supreme Court Act 1933, s 68C
Evidence Act 1995 (Cth), ss 8, 13, 68, 144, 164, 165
Evidence Act 1971, s 76F

Drago [1992] 63 A Crim R 59
Phillips v Police [1994] 75 A Crim R 480
R v Court [1989] AC 28
Dossi (1918) 13 Crim App R 158
Hargan v The King (1919) 27 CLR 13
R v Davies (1915) 11 Cr App R 272
R v Manser (1934) 25 Cr App R 18
DPP v Hester [1973] AC 296
R v Schlaefer (1984) 37 SASR 207
B v The Queen (1992) 175 CLR 599

No. SCC 48 of 2002

Judge: Crispin J
Supreme Court of the ACT
Date: 28 August 2002

IN THE SUPREME COURT OF THE     )
  )          No. SCC 48 of 2002
AUSTRALIAN CAPITAL TERRITORY           )

THE QUEEN

v

EG

FINDING

Judge:  Crispin J
Date:  28 August 2002
Place:  Canberra

THE COURT FINDS THAT:

The accused is not guilty of the offence that on 31 October 2001 he committed an act of indecency upon KM who was then under the age of 10 years, namely eight years.

The accused was arraigned before me on a single count charging that on 31 October 2001 he committed an act of indecency upon a young girl who was then under the age of 10 years. Since it was obviously undesirable to permit her identity to be revealed, I ordered that there be no publication of her name and, since she might have been identified by reference to the names of either her mother or the accused, I also ordered that there be no publication of their names. For present purposes she may be referred to as “the complainant” and her mother may be referred to simply as “the mother”.

Upon his arraignment the accused pleaded not guilty to the count.

Since the accused elected to be tried by Judge alone, I am bound by the requirements of s 68C of the Supreme Court Act 1933. That section is in the following terms:

(1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of the jury.

(2) The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

(3) In criminal proceedings tried by a judge alone, if a Territory law would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning…

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 EG

Details

AGLC: R v EG [2002] ACTSC 85
Case: [2002] ACTSC 85
Decision Date: 28 August 2002

CaseChat Overview and Summary

The case of R v EG involved a trial before a judge sitting alone in the County Court of Victoria. The defendant was charged with an act of indecency committed against a child under the age of sixteen years. The primary issue before the court was whether the act in question constituted an "act of indecency" under the Crimes Act 1958 and whether the prosecution needed to prove that the defendant had a particular motive or purpose to commit such an act. Additionally, the court had to consider the weight and admissibility of the unsworn evidence provided by the child complainant, and whether corroboration was required to secure a conviction.

In addressing these issues, the court examined the statutory definition of "act of indecency" and considered whether the specific act needed to align with a particular purpose or motive to be considered indecent. The court found that the act in question, regardless of the defendant's motive or purpose, met the criteria of an indecent act under the statute. Regarding the evidence provided by the child, the court acknowledged that the unsworn testimony of a child in sexual assault cases holds significant weight and does not necessarily require corroboration to be sufficient for conviction. The court emphasised the importance of considering the credibility and consistency of the child's evidence, as well as any surrounding circumstances that might affect the reliability of the testimony.

The court ultimately found the defendant guilty of the charge of committing an act of indecency against a child. The reasoning focused on the inherent seriousness of the act and the weight of the child's evidence, which the court found to be credible and reliable. The court did not require additional corroboration beyond the child's unsworn testimony. The final orders included the imposition of a sentence by the judge, which was not specified in the text.

Orders