R v Faulkner No. DCCRM-01-390 - [2002] SADC 14

R v FAULKNER
[2002] SADC 13
Judge Bishop

Criminal

James Michael Faulkner (“the accused”) is charged upon an information which alleges that he committed four offences against a 12 years old boy (J), at Glanville and Port Adelaide, between 1 November 2000 and 26 January 2001, namely,
Count 1- indecent assault - in that, between 1 November 2000 and 25 January 2001, at Glanville, he indecently assaulted J, a person of the age of 12 years, by touching his penis while claiming to be touching his pressure points: contrary to section 56 of the Criminal Law Consolidation Act, 1935.
Count 2- indecent assault – in that, between 1 November and 30 November 2000, at Port Adelaide, he indecently assaulted J, a person of the age of 12 years: (Ibid).
Count 3- serious criminal trespass in a place of residence – in that, between 25 and 26 January 2001, at Glanville, he entered or remained in a place of residence of R [who is the mother of J] as a trespasser, with the intention of committing an offence, namely abduction of a child under 16 years, when J was lawfully there present and the accused knew of J’s lawful presence: contrary to sections 170(1) and 170(2) of the Criminal Law Consolidation Act, 1935.
Count 4- attempting to abduct a child under 16 years – in that, on or about 25 January 2001, at Glanville, he unlawfully attempted to take away J, a child of the age of 12 years, by force with intent to deprive his parent, R, of possession of him: contrary to sections 80(1)(a) and 270A of the Criminal Law Consolidation Act, 1935.
Upon arraignment before me on 21 January 2002, the accused elected to be tried by judge alone. Consistent with a ruling previously given by Judge Lowrie that application was granted, whereupon the accused pleaded not guilty to counts 1, 3 and 4 and guilty to count 2. During submissions relating to a possible suppression from publication of the accused’s name, I became aware that the accused has recently pleaded guilty before Judge Hume to sexual offences against other children. That awareness I shall certainly put out of my mind in considering this case. I shall direct myself completely to ignore or disregard that knowledge which would necessarily have disqualified a juror from sitting on this trial, were the case being tried with a jury.
At trial, the prosecution called five witnesses – J, his mother (R), his mother’s partner (Mr “Jack” Salvemini), a friend of Mr Salvemini (Mr Mallon) and a police crime scene examiner (Senior Constable Goodwin). Statements of other persons and documentary material (plans, photographs and a video record of interview with the accused, together with a transcription of that interview) were tendered by consent. The accused also gave evidence. A view of Unit 3 was conducted. I shall refer (with my emphasis) to the evidence here presented.
The evidence of J
J (who was born on 8 March 1988…

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.

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Details

Case: [2002] SADC 14
Decision Date: 22 February 2002

CaseChat Overview and Summary

The court in R v Faulkner considered a case where the accused, James Michael Faulkner, was charged with multiple offences against a 12-year-old boy, J. The charges included indecent assault, serious criminal trespass in a place of residence, and attempting to abduct a child under 16 years. The case primarily revolved around the credibility and reliability of J's evidence against the accused. The court provided detailed legal directions, emphasizing the need for a cautious and critical evaluation of J's testimony due to his young age and the potential for fabrication or immaturity. The court scrutinized the evidence, including inconsistencies and the accused's admitted lies, which adversely affected his credibility. Ultimately, the court found the accused guilty of the offences alleged in counts 1, 3, and 4, based on the evidence presented, including J's statements made in circumstances of spontaneity that excluded the possibility of concoction.

Orders