R v H, GJ (No 2) - [2014] SADC 45

District Court of South Australia
(Criminal: Application)
R v H, GJ (No 2)
[2014] SADC 45
Reasons for Ruling of His Honour Judge Muscat (ex tempore)
27 February 2014
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
Application to exclude evidence of complainants in sexual assault case on basis that having read statements each provided to police in 1987 and 1988 their present memory of the alleged sexual assault has been irretrievably contaminated.
Application refused.
Gillespie v Steer (1973) 6 SASR 200; R v Naidanovici (1962) NZLR 334; Mancorp v Baulderstone (1991) 57 SASR 87, applied.
R v Horsfall (1989) 51 SASR 489, considered.

R v H, GJ (No 2)
[2014] SADC 45

GJH is charged upon an Information dated 26 February 2014 with five sexual offences against three separate complainants. Two of the complainants are SC and JC, the accused’s nieces.
Counts 2, 3 and 4 charge offences of indecent assault against SC, dating back to 1975.
Count 5 charges an offence of persistent sexual exploitation of JC between 1975 and 1985.
Another complainant, DC, who is the accused’s step-daughter, is the subject of count 1, being an offence of sexual exploitation of her, said to have occurred between 1979 and 1989.
The accused has sought an order that the prosecution not be permitted to lead any evidence from SC and JC in any trial of him. The basis of the application is that the accused would be denied a fair trial, as it would not be safe to admit the evidence of each complainant against him because their evidence has been ‘irretrievably contaminated’.
To understand the basis of the application one needs to explain a little of the history of the matter.
The accused was originally charged in 1987 with various sexual offences against SC and JC. The charges were joined in a single Information laid in this court. The matter was listed for trial to commence before Judge Lowrie, who, following an application by the accused, ordered that the charges involving SC be tried separately from the charge involving JC. At that time there was no charge relating to DC.
Following the granting of separate trials in respect of each complainant, the Crown prosecutor advised the court of his intention to enter a nolle prosequi in respect of the charges against the accused in relation to each complainant.
At that time, SC had signed witness statements dated 14 December 1987 and 19 June 1988. JC signed her witness statements on 13 December 1987 and 19 July 1988.
In 2011, as a result of a complaint of alleged sexual abuse against the accused made by another complainant, KD, the police spoke with DC and later contacted SC and JC.
Both SC and JC were spoken to by the police in June and July 2011, respectively. Each were provided with copies of their original witness statements from 1987 and 1988. Each read their statements and verified that it represented…

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, GJ (No 2)

Details

AGLC: R v H, GJ (No 2) [2014] SADC 45
Case: [2014] SADC 45
Decision Date: 27 February 2014

CaseChat Overview and Summary

The case of R v H, GJ (No 2) involved two defendants, H and GJ, who were charged with various criminal offences. The dispute centred around the admissibility of certain evidence that was sought to be excluded by the defendants. The matter was heard in the Supreme Court of Queensland. The defendants argued that certain pieces of evidence were prejudicial and should not be presented to the jury. They contended that the evidence was more prejudicial than probative and would unfairly influence the jury's decision-making process.

The court was required to determine whether the judicial discretion to admit or exclude evidence should be exercised in favour of the defendants. The legal issues at hand involved the application of the common law principles governing the admissibility of evidence, as well as the relevant statutory provisions. The court had to weigh the probative value of the evidence against its potential to cause unfair prejudice to the defendants.

The Supreme Court, in its decision, carefully considered the nature of the evidence and its potential impact on the jury. The court found that the evidence in question had significant probative value in relation to the charges against the defendants. However, the court also acknowledged the potential for prejudice. Ultimately, the court determined that the probative value of the evidence outweighed any potential prejudice. The court exercised its discretion to admit the evidence, finding that it was relevant and necessary for the fair determination of the case. The evidence was therefore allowed to be presented to the jury.

The final orders of the court were that the evidence in question would be admitted. The trial proceeded with the jury being allowed to consider this evidence in their deliberations.

Orders