R v Elrick - [2011] ACTSC 66

R v SHAWN MATTHEW ELRICK
[2011] ACTSC 66 (28 April 2011)

CRIMINAL LAW – jurisdiction practice and procedure – trial by judge alone – offences of sexual intercourse with a person between ten and sixteen years –accused not guilty.
CRIMINAL LAW – jurisdiction practice and procedure – trial by judge alone – offence of committing an act of indecency with a person between ten and sixteen years – accused not guilty.
CRIMINAL LAW – particular offences – offences against the person – committing an act of indecency with a person between ten and sixteen years – elements of the offence – offending against recognised standards of propriety or good taste according to contemporary standards.
CRIMINAL LAW – jurisdiction practice and procedure – prosecution seeking to adduce evidence in reply – exceptional circumstances required – reply evidence permitted.
EVIDENCE – admissibility and relevancy – admission of case statement – reliance to credibility of prosecution witnesses – not relevant.

Crimes Act 1900 (ACT), s 50
Evidence (Miscellaneous Provisions) Act1991 (ACT), ss 40, 40Q, 40U Div 4.2B
Supreme Court Act 1933 (ACT), s 68B

Criminal Procedure Act 1986 (NSW), s 33

R v Massey [2000] ACTSC 107
Fleming v The Queen (1998) 197 CLR 250
R v DM [2010] ACTSC 137
R v Mulcahy [2010] ACTSC 98
Shaw v The Queen (1952) 85 CLR 365
The Queen v Chin (1985) 157 CLR 671

R v Morton (1998) 143 FLR 268
R v Goodwin (2009) 233 FLR 473

No. SCC 185 of 2008

Judge: Refshauge J
Supreme Court of the ACT

Date: 28 April 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCC 185 of 2008
AUSTRALIAN CAPITAL TERRITORY )

R
v

SHAWN MATTHEW ELRICK

ORDER

Judge:  Refshauge J
Date:  28 April 2011
Place:  Canberra

THE COURT FINDS THAT:

On the first count on the indictment, the accused is not guilty.

On the second count on the indictment, the accused is not guilty.

On the third count on the indictment, the accused is not guilty.

The accused, Shawn Matthew Elrick, was charged on 29 January 2008 with two offences against the Crimes Act 1900 (ACT), alleging that he had committed prohibited sexual acts against a young woman. On 6 March 2008, he was charged with a further such offence against another young woman.

In order to comply with s 40 of the Evidence (Miscellaneous Provisions) Act1991 (ACT) (Miscellaneous Provisions Act), I shall refer to the complainants by the use of initials; the first I will refer to as TBL, the second as WEN.

Mr Elrick was arrested on 27 January 2008, and having earlier pleaded not guilty, he was, on 16 May 2008, committed for trial to this court. On 8 September 2008, he made an election for trial by judge alone under s 68B of the Supreme Court Act 1933 (ACT).

The charges

The indictment presented to the court, charged Mr Elrick as follows:

FIRST COUNT: ... that on or about the 19^th day of January…

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 Elrick

Details

AGLC: R v Elrick [2011] ACTSC 66
Case: [2011] ACTSC 66
Decision Date: 28 April 2011

CaseChat Overview and Summary

The matter of R v Elrick was heard in the court, where the accused faced charges related to sexual offences involving a person between the ages of ten and sixteen years. The court was required to determine whether the accused was guilty of having sexual intercourse with a person in this age group, as well as whether the accused committed an act of indecency with a person in the same age bracket. The case was heard by a judge alone, without a jury.

The primary legal issues the court had to resolve were whether the prosecution had established the elements of the offences beyond a reasonable doubt, and whether the trial judge had correctly admitted evidence during the proceedings. The court also needed to consider the nature of the act of indecency and whether it contravened recognised standards of propriety or good taste according to contemporary standards. Furthermore, the court had to decide whether the prosecution was permitted to adduce reply evidence and, if so, under what circumstances such evidence would be admissible.

In reaching its decision, the court found that the prosecution had not proven the offences against the accused beyond a reasonable doubt. The court also determined that the evidence adduced by the prosecution did not meet the threshold for indecency under the relevant legislation. Regarding the admissibility of the case statement, the court ruled that its reliance on the credibility of prosecution witnesses was not a relevant consideration. Additionally, the court held that exceptional circumstances were required for the prosecution to adduce reply evidence, and in this instance, such evidence was not permitted. Consequently, the accused was acquitted of both charges.

The final orders of the court were that the accused, Elrick, be found not guilty of both the charge of sexual intercourse with a person between ten and sixteen years and the charge of committing an act of indecency with a person between ten and sixteen years.

Orders