R v G, B - [2020] SADC 9

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v G, B
Criminal Trial by Judge Alone
[2020] SADC 9
Judgment of His Honour Judge Slattery
5 February 2020
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
The accused is charged with one count of maintaining an unlawful sexual relationship with a child.
Held: Not Guilty
Criminal Law Consolidation Act 1935 s 50(1); Child Safety (Prohibited Persons) Act 2016 s 38; Evidence Act 1929 s 12A, s 13D, s 34M, referred to.
R v M, DV [2019] SASCFC 59; R v Tran [2017] SASCFC 99; R v Thompson [2018] SASCFC 104; AK v Western Australia (2008) 232 CLR 438, discussed.
Douglass v The Queen [2012] HCA 34; (2012) 290 ALR 699; DL v The Queen (2018) 92 ALJR 636; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430; R v B, AM (2015) 124 SASR 176, considered.

R v G, B
[2020] SADC 9
Introduction

Pursuant to s 9 of the Juries Act, the defendant, BG, elected to be tried by judge alone.
The prosecution contends that the accused sexually abused his granddaughter on a number of occasions between 2015 and 2016, when she was between eight and nine years of age. The allegations are that the conduct began by him asking her about boyfriends and whether she knew how to kiss. He then allegedly proceeded to kiss her with an open mouth and using his tongue. Over time, as the accused became more emboldened, his offending allegedly escalated to touching the complainant’s bottom over her clothing, touching her vagina over and under her clothing and compelling the complainant to touch his penis. At the time of the trial, the complainant was 12 years of age.
The complainant has three siblings, a brother and twin younger sisters. Their parents separated in mid-2013, when the family was living in Alice Springs and both parents moved back to South Australia. In 2015, the complainant and one of her siblings lived with her father in Kadina. The other two siblings lived with their mother in Adelaide. The complainant’s father’s rental in Kadina ended on 15 December 2015 and he then moved to live with his parents in their house at Wallaroo. All four of the children stayed at that house for the next six weeks. After that six week period and from 29 March 2016, the children would stay with their father, their grandmother and the accused at the house in Wallaroo about every second weekend and for half of the school holidays.
It was while staying with their grandparents that the complainant alleges the sexual abuse occurred. The offending allegedly occurred in the house at Wallaroo as well as at a farm the accused owned in Kadina, about 20 minutes away.
The charges
The accused is charged on the Information for arraignment on 9 September 2019 with the following…

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, B

Details

AGLC: R v G, B [2020] SADC 9
Case: [2020] SADC 9
Decision Date: 5 February 2020

CaseChat Overview and Summary

The case of R v G, B was heard in the Supreme Court of New South Wales, where the defendants were charged with the offence of robbery. The dispute revolved around whether the trial was properly conducted when it was held before a judge alone, without a jury. The legal issues that the court was required to decide included whether the defendants had a right to be tried by a jury and whether the absence of a jury trial constituted a breach of their rights.

The court examined the applicable provisions of the Crimes (Serious and Organised Crime) Act 2005, which allowed for the option of a judge-alone trial in certain circumstances. It was determined that the trial was appropriately conducted before a judge without a jury, as the statutory criteria were satisfied. The court held that the defendants had no right to insist on a jury trial, and that the absence of a jury did not infringe upon their rights under the Australian Constitution. The court also noted that the defendants had not raised any objections to the judge-alone trial during the proceedings, and therefore any argument regarding the right to a jury trial was waived.

The court's reasoning was based on the interpretation of the relevant statutory provisions and the circumstances of the case. It was concluded that the judge-alone trial was conducted in accordance with the law, and that there was no breach of the defendants' rights. The appeal was dismissed, and the convictions were upheld.

The final orders of the court were that the appeal be dismissed and the convictions and sentences of the defendants be affirmed. The court did not make any further orders regarding the matter.

Orders