R v G, WJ - [2019] SADC 131

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v G, WJ
Criminal Trial by Judge Alone
[2019] SADC 131
Reasons for the Verdicts of Her Honour Judge Schammer
12 September 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - EVIDENCE - CORROBORATION - SUFFICIENCY OF EVIDENCE TO CONVICT - SEXUAL OFFENCES
The accused is charged with offending against one complainant, namely two counts of indecent assault and one count of unlawful sexual intercourse with a person under the age of 17 years, particularised as having occurred between 9 October 1976 and 22 January 1980.
The alleged offending in count 3 was witnessed by the accused's then stepdaughter, the complainant's cousin, AH. AH gave a police statement in 1991 relating to alleged offending by the accused against her arising from the same incident, said at that time to have occurred in 1983. The accused pleaded guilty to a charge of indecent assault against AH arising from the incident on the basis of the allegations in AH's 1991 statement.
Whether the inconsistency as to the date of the alleged offending in count 3 in AH's evidence as compared to what is in her 1991 statement, together with her evidence as to the vehicle involved in the offending, gives rise to a reasonable doubt as to the accused's guilt as to all counts.
Whether inconsistencies in the complainant's evidence compared to prior statements gives rise to a reasonable doubt as to her reliability and credibility.
Verdict: The accused is not guilty of count 1, but guilty of counts 2 and 3.
R v Pfitzner (1976) 15 SASR 171, considered.

R v G, WJ
[2019] SADC 131
Introduction

The accused, G, WJ,[1] is charged on Information dated 18 March 2019 with two counts of indecent assault (counts 1 and 3) and one count of unlawful sexual intercourse with a person under the age of 17 (count 2). The complainant in each instance is JH, the niece of the accused’s former spouse, CCB.
[1] The accused is known by three different names. There is no dispute that a reference by a witness to either G, WJ, or H, T or H, LJ is a reference to the accused.
JH was born on 22 January 1965.[2] The accused’s date of birth is 15 June 1945.[3]
[2] T 27.24-25; Exhibit P6.
[3] T 202.7-8; Exhibit P5, but noting Exhibit P10 states the accused’s date of birth as 27 December 1944.
The alleged offending in each instance is said to have occurred between 9 October 1976 and 22 January 1980, when JH was aged between 11 and 15 and the accused was aged between 31 and 34.
The accused elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927. He gave evidence denying…

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, WJ

Details

AGLC: R v G, WJ [2019] SADC 131
Case: [2019] SADC 131
Decision Date: 12 September 2019

CaseChat Overview and Summary

The case of R v G, WJ was heard before the Court of Criminal Appeal, where the defendant appealed against his conviction for indecent assault and unlawful sexual intercourse. The defendant had been found guilty of these offences by the lower court based on the testimony of the complainant, who alleged that the defendant had assaulted her by touching her breasts and having sexual intercourse without her consent. The defendant denied the charges, claiming that the sexual activity was consensual.

The primary legal issues the court was required to address were whether the evidence presented was sufficient to support the conviction, and if the lower court had properly considered the need for corroboration of the complainant's testimony. The court needed to determine whether the jury could have been satisfied beyond reasonable doubt that the sexual activity was non-consensual and whether the lack of independent evidence was a fatal flaw in the prosecution's case.

The Court of Criminal Appeal found that the jury had been properly directed on the need for corroboration in sexual offence cases and that the evidence, when considered as a whole, was sufficient to support the conviction. The court emphasised that the complainant's testimony, if believed, was capable of supporting a conviction without the need for independent evidence. The appeal was dismissed, and the conviction was upheld. The court concluded that the jury had been properly guided on the legal principles and that the evidence provided a satisfactory basis for the verdict.

Orders