R v Forsti

Case [2010] ACTSC 85

R v HENRIK FORSTI [2010] ACTSC 85 (19 August 2010)

CRIMINAL LAW – trial by judge alone – offence of act of indecency upon a person under the age of 10 – accused found guilty

CRIMINAL LAW – trial by judge alone – offence of act of indecency in the presence of a person under the age of 10 – accused found guilty

CRIMINAL LAW – trial by judge alone – offence of sexual intercourse with a person under the age of 10 – allegation of enema administered by the accused

CRIMINAL LAW – trial by judge alone – offence of incest in respect to a person under the age of 10 – prosecution must negate the exception of penetration for a proper medical purpose – no evidence suggesting relationship of step-father/step-child – charges not proved beyond reasonable doubt

CRIMINAL LAW – trial by judge alone – offence of sexual intercourse with a person above the age of 10 but under the age of 16 – offence of incest in respect of a person above the age of 10 but under the age of 16 – interpretation of a person “in loco parentis” – insufficient evidence to prove “loco parentis” – charges not proved beyond reasonable doubt

CRIMINAL LAW – trial by judge alone – offence of employing young person for pornographic purposes – definition of “employment” and “service” – ambiguity as to the extent the word “employ” intended to cover – depiction of a naked child by way of photograph is not an act of indecency in itself – charge not proved beyond reasonable doubt

CRIMINAL LAW – trial by judge alone – offence of possession of child pornography – definition of “child pornography” – insufficient depiction of any discernable representation with respect to four photographs – reasonable explanation provided with respect to three of the photographs – charge not proved beyond reasonable doubt

EVIDENCE – warnings concerning the complainant’s evidence – delay in making complaints – Longman warning given – Evidence Act 1995 (Cth) s 165B – risk of “false” or “recovered” memories – reliability of complainant’s evidence – uncharged acts not led for tendency or propensity purposes – evidence of uncharged acts does not have special confirmatory value towards events subject of the indictment – inconsistency in evidence between committal and trial does not necessarily suggest fabrication of genuine recollection

Crimes Act 1900 (ACT), ss 50, 56, 62, 64, 65, 92, 92L, 92NA

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 40, 43, 46, 69, 71

Supreme Court Act 1933 (ACT), s 68C
Evidence Act 1995 (Cth), ss 97, 98, 164, 165B
Crimes (Amendment) Ordinance 1987 (ACT), s 92N

Fleming v The Queen (1998) 197 CLR 250
Longman v The Queen (1989) 168 CLR 79
Crampton v The Queen (2000) 206 CLR 161
R v DF [2010] ACTSC 31 (15 April 2010)
R v E (1997) 96 A Crim R 489

S v R (1989) 168 CLR 266
R v CT [2001] ACTSC 65 (28 June 2001)
Bennet…

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AGLC
R v Forsti [2010] ACTSC 85
Case
[2010] ACTSC 85
Decision Date

CaseChat Overview and Summary

In the case of R v Forsti, the appellant was convicted in a trial by judge alone of two counts of indecent acts with a person under the age of 10, but acquitted on all other charges. The court considered the accused's actions in relation to a young child, examining the specific statutory offences of indecency and sexual intercourse with a minor, among other allegations. The legal issues at hand included whether the accused was guilty of the charged offences and if the prosecution had established the elements of each offence beyond reasonable doubt.

The court examined the evidence meticulously, particularly focusing on the credibility and reliability of the complainant's testimony, which involved significant delays in reporting the alleged incidents. The court applied the Longman warning in accordance with the Evidence Act 1995 (Cth) s 165B to address the risks associated with the delayed reporting. Despite inconsistencies in the evidence presented at the committal and trial stages, the court found that these did not necessarily undermine the reliability of the complainant's genuine recollection. The court also considered the specific statutory definitions and exceptions, such as the requirement to negate the exception of penetration for a proper medical purpose in the incest charge and the interpretation of "in loco parentis" for the incest and employment charges.

The court concluded that the prosecution had proved beyond reasonable doubt that the accused committed the acts of indecency with the child, thereby finding him guilty on those counts. However, the court found the accused not guilty on all other charges due to insufficient evidence to establish the necessary elements of those offences. The court's final orders reflect these findings, with the accused being found guilty on two counts and acquitted on all others.

Orders

Orders of the court

1. On the first count on the indictment, the accused is guilty.

2. On the second count on the indictment, the accused is guilty.

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

4. On the fourth count on the indictment, the accused is not guilty.

5. On the fifth count on the indictment, the accused is not guilty.

6. On the sixth count on the indictment, the accused is not guilty.

7. On the seventh count on the indictment, the accused is not guilty.

8. On the eighth count on the indictment, the accused is not guilty.

9. On the ninth count on the indictment, the accused is not guilty.

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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