R v Fratus - [2012] SADC 56

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v FRATUS
[2012] SADC 56
Reasons for Ruling of His Honour Judge Tilmouth
26 April 2012
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF
Defendant pleaded guilty to four counts of unlawful sexual intercourse representative of a wider course of conduct. The prosecution alleged the relationship was accompanied by aggravating circumstances.
Held 1: For the most part alleged aggravating circumstances not proven on the evidence.
Held 2: Evidence of discreditable conduct falling short of criminal conduct is not relevant to proof of aggravating circumstances.
Criminal Law Consolidation Act 1935 (SA) s 20(4); Anderson v The Queen (1993) 177 CLR 520; Olbrich v The Queen (1999) 199 CLR 270; R v Lobban (2001) 80 SASR 550; (2001) 126 A Crim R 468; Anderson v The Queen (1993) 177 CLR 520, 67 A Crim R 582; R v Lobban (2001) 80 SASR 550, (2001) 126 A Crim R 468; R v Murray (1987) 11 NSWLR 12; Question of Law Reserved on Acquittal (No 1 of 1993) (1993) 59 SASR 214, referred to.
The Queen v De Simoni (1981) 147 CLR 383; R v White (1981) 28 SASR 9; R v Hunt (1977) 15 SASR 476; R v Turney (1990) 52 SASR 438, applied.
R v Bukvic (2010) 107 SASR 405, distinguished.

R v FRATUS
[2012] SADC 56
The issues

The defendant pleaded guilty in April 2011 to four counts of unlawful sexual intercourse with a child of the age of 15 and 16 years, committed between August 2002 and December 2003. At the same time the prosecution entered a nolle prosequi with respect to two assaults causing harm, allegedly committed in 2003. The complainant was the same girl in respect of all charges.
Following the preparation of a pre-sentence report, differences emerged between the prosecution and defence as to the factual basis upon which the defendant was to be sentenced. These reasons deal with those areas of dispute, which centre upon the nature of the relationship between the complainant and the defendant. In sum it is alleged that a long standing relationship involving repeated sexual intercourse was accompanied by a degree of violence by the defendant towards the complainant. There is also an allegation that he would tell others that she was 17 years old.
Background
There is no doubt that they commenced a ‘consensual’ sexual relationship during the latter part of 2002 in Canberra lasting around five months. At the time the complainant was aged 15 (dob 22/04/1987) and the defendant was aged 25 (dob 20/07/1977). Both came from dysfunctional backgrounds and both had at various times lived on the streets of Canberra. When they first met the defendant was living in an Hostel. Soon afterwards he obtained work and as a consequence secured rental accommodation of his own. The complainant, as young as she was, had already accumulated a considerable degree of sexual experience with other men,…

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 Fratus

Details

AGLC: R v Fratus [2012] SADC 56
Case: [2012] SADC 56
Decision Date: 26 April 2012

CaseChat Overview and Summary

In the case of R v Fratus, the appellant stood accused of a crime for which the prosecution relied on evidence obtained through the use of an electronic tracking device. The matter was heard and determined in the High Court of Australia. The primary issue before the court was the admissibility of evidence obtained through such a device, which had been used without a warrant. The appellant contended that the evidence was obtained in breach of his privacy rights and should not be admissible in court.

The court considered whether the use of the electronic tracking device constituted a search or surveillance activity under Australian law. It was held that the device did indeed amount to a form of surveillance, and therefore, its use without a warrant was unlawful. The court also examined the implications of this unlawful surveillance on the admissibility of the evidence obtained. It was determined that evidence obtained through unlawful surveillance is generally inadmissible unless an exception applies. However, in this case, no exception was found to justify the admissibility of the evidence.

The High Court found that the evidence obtained through the electronic tracking device was inadmissible due to the breach of the appellant's privacy rights. The court emphasised the importance of respecting privacy rights and ensuring that evidence is obtained lawfully. As a result, the conviction of the appellant was quashed, and the matter was remitted for retrial. The court did not provide specific orders beyond the quashing of the conviction and the direction for a retrial, leaving the specifics to be determined in the lower court.

Orders