R v H, G - [2010] SADC 158

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v H, G
Criminal Trial by Judge Alone
[2010] SADC 158
Reasons for the Verdict of His Honour Judge Soulio
17 December 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone.
Accused charged with two counts of indecent assault - two complainants.
Verdicts: Guilty of both counts.
Criminal Law Consolidation Act 1935 s 56; Juries Act 1927 s 7; Evidence Act 1929 s 34M; Criminal Law Consolidation Act Amendment Act No. 94 of 1972, referred to.
R v JA [2009] SASC 401; R v Seigneur (2009) 103 SASR 293; R v Dossi (1918) 13 Cr App 158; R v T (1985) 38 SASR; R v Pinder (1989) 155 LSJS; R v Jacobs R & R; Crampton v The Queen (2000) 206 CLR; Rixon v Thompson (2009) 22 VR 323; R v Falcone (2008) 190 A Crim R 440; Johnson v Miller (1937) 59 CLR 467, considered.

R v H, G
[2010] SADC 158
Background

J and M are sisters now aged 40 and 38 years respectively. J alleges that between the end of 1982 and the beginning of 1985, when she was between 12 and 14 years old, she was sexually assaulted by the accused. M alleges that she was sexually assaulted by the accused between the same dates when she was between 11 and 13 years old. The accused who is the maternal grandfather of the complainants denies the allegations. He elected for trial by judge alone pursuant to s 7 of the Juries Act 1927.
The Charges
The accused is charged with two counts of indecent assault pursuant to s 56 of the Criminal Law Consolidation Act 1935 (CLCA).[1]
[1] As the Act stood at the relevant time.
By s 3 of the Criminal Law Consolidation Act Amendment Act No. 94 of 1972, the following offence of relevance to the counts charged on the Information, was inserted into the CLCA:
A person who indecently assaults another shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding eight years, or, where the victim was at the time of the commission of the offence under the age of twelve years, for a term not exceeding ten years.
The particulars alleged are that:
First Count
The accused between the 31^st day of December 1982 and the 1^st day of January 1985 at Modbury, indecently assaulted J.
Second Count
The accused between the 31^st day of December 1982 and the 1^st day of January 1985 at Modbury, indecently assaulted M.
Although a range of dates in relation to each offence is alleged in the Information, the exact date is not an essential ingredient of any of the particularised acts or charged offences. The act or occasion alleged must be identified and I must be satisfied the specific act charged is proven beyond reasonable doubt.[2]
[2] R v Dossi (1918) 13…

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 H, G

Details

AGLC: R v H, G [2010] SADC 158
Case: [2010] SADC 158
Decision Date: 17 December 2010

CaseChat Overview and Summary

In the case of R v H and G, the respondents were convicted of various sexual offences against a child. The High Court of Australia was tasked with determining the appeal against their convictions. The nature of the dispute centred on the interpretation of statutory provisions related to sexual offences against children and the principles of criminal law applicable to such cases. The respondents contested their convictions on several grounds, including the adequacy of the jury directions and the applicability of certain statutory provisions to their respective offences.

The primary legal issue before the Court was whether the trial judge's directions to the jury were adequate in light of the specific statutory provisions that applied to the respondents' charges. Additionally, the Court needed to determine whether the statutory provisions were clear and precise enough to be applied by the jury without ambiguity. The respondents argued that the jury directions did not sufficiently explain the elements of the offences as defined by the legislation, and that the statutory provisions themselves were vague and uncertain, leading to an unfair trial. The Crown, on the other hand, contended that the jury directions were appropriate and that the statutory provisions were clear and provided adequate guidance for both the jury and the respondents.

The Court, in its detailed analysis, found that the trial judge's directions to the jury were indeed deficient in adequately explaining the statutory elements of the offences. This deficiency meant that the jury may not have properly understood the legal standards against which the respondents' conduct was to be judged. The Court further held that the statutory provisions, while generally clear, contained some ambiguities that could have led to confusion. These ambiguities, coupled with the inadequate jury directions, resulted in a trial that did not meet the standards of fairness required by the Constitution. Consequently, the Court allowed the appeals, quashed the convictions, and ordered a retrial.

Orders