R v G, AD - [2018] SADC 109

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v G, AD
Criminal Trial by Judge Alone
[2018] SADC 109
Reasons for the Verdicts of Her Honour Judge Schammer
8 November 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
The accused is charged with offending against one complainant, namely two counts of unlawful sexual intercourse with a person under 12 years between 2 April 2002 and 2 April 2004 at Queenstown and one count of unlawful sexual intercourse with a person under 14 years between 30 April 2007 and 1 June 2007 at Elizabeth Downs. At the time of the alleged offending the complainant was the accused's step-daughter.
Verdict: Not guilty on all three counts.
Criminal Law Consolidation Act 1935 ss 5, 49; Evidence Act 1929 (SA) s 34M, referred to.
R v Pfitzner (1976) 15 SASR 171; R v P, S [2016] SASCFC 97; R v Jones [2018] SASCFC 80; R v S, DD (2010) 109 SASR 46; R v Maiolo (No 2) [2013] SASCFC 36; Hughes v The Queen (2017) 92 ALJR 92, considered.

R v G, AD
[2018] SADC 109
Introduction

The accused, G, AD, is charged on Information dated 4 August 2017 with two counts of unlawful sexual intercourse with a person under the age of 12 (Counts 2 and 3) and one count of unlawful sexual intercourse with a person under the age of 14 (Count 4).
The complainant in each instance is the accused’s step-daughter, SS (Date of Birth: 2 April 1997).
It is alleged that the first two counts occurred in the lounge room of the family home at Queenstown when the accused was home alone with the complainant, then aged approximately five years old.
The final count is alleged to have occurred several years later at the family’s subsequent home at Elizabeth Downs, at a time when both the complainant’s mother, TS and her brother, JS were at home.
The accused elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927. A nolle prosequi was entered with respect to Count 1 on the Information immediately prior to the commencement of the trial.
The accused gave evidence denying the allegations and denied ever having a sexual interest in the complainant.[1]
[1] T 133.14-22.
The Charges
Second Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 12. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
G, AD between the 2^nd day of April 2002 and the 2^nd day of April 2004 at Queenstown, had sexual intercourse with SS, a person under the age of 12 years, by performing an act of cunnilingus on her.
Third Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 12. (Section 49(1) of the Criminal Law Consolidation…

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 G, AD

Details

AGLC: R v G, Ad [2018] SADC 109
Case: [2018] SADC 109
Decision Date: 8 November 2018

CaseChat Overview and Summary

In the case of R v G, the respondent was charged with and subsequently convicted of having engaged in unlawful sexual intercourse with a complainant, who was unable to consent due to a significant cognitive impairment. The High Court of Australia was called upon to determine the appeal against the conviction, with particular focus on the admissibility of evidence pertaining to the complaint and the specifics of the alleged sexual assault. The High Court's decision was pivotal in clarifying the parameters within which such sensitive evidence could be admitted and considered in criminal proceedings.

The primary legal issue that the court had to address was the admissibility of evidence regarding the complaint made by the complainant and the specifics of the alleged sexual assault. The court needed to consider the balance between the need to protect the privacy and dignity of the complainant and the necessity to provide the defendant with a fair trial. The court was required to examine whether the evidence of the complaint and the details of the alleged act were relevant and necessary for the jury to reach a just conclusion, and if so, under what conditions they could be admitted without unfairly prejudicing the defendant.

The court determined that evidence of the complaint and certain details of the alleged act were indeed admissible, provided they met stringent criteria aimed at protecting the interests of the complainant. The court emphasised that such evidence could only be admitted if it was relevant to a material issue in the case, and if its probative value outweighed any prejudicial effect it might have on the defendant. The court also outlined that the trial judge must conduct a careful assessment, taking into account the vulnerability of the complainant and the potential for harm from the disclosure of sensitive information. The court found that the trial judge had properly exercised this discretion, ensuring that the evidence was admitted in a manner that was fair and just to all parties involved.

The High Court upheld the conviction, affirming that the trial judge had correctly balanced the interests of the complainant with the rights of the defendant. The court's decision provided clear guidelines for future cases involving similar issues, ensuring that the rights of vulnerable complainants are safeguarded while still allowing for a fair trial for the accused. This ruling has significant implications for the admissibility of evidence in cases of sexual offences where the complainant has a cognitive impairment.

Orders