R v Howden - [2009] SADC 10

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HOWDEN
Criminal Trial by Judge Alone
[2009] SADC 10
Reasons for the Verdict of His Honour Judge Millsteed
9 February 2009
CRIMINAL LAW
Trial by judge alone - accused charged with aggravated indecent assault - whether second complaint was admissible as evidence of a recent complaint of a sexual offence - evidence held to be inadmissible - complainant aged six years at the time of the alleged offence and eight years at the time of trial - complainant gave unsworn evidence - no independent support for complainant's account - accused found not guilty.
Criminal Law Consolidation Act 1935 (SA) s 56; Juries Act 1927 s 7; Evidence Act 1929 s 9(1), s 9(2), s 9(4), referred to.
R v Climas (Question of Law Reserved) (1999) 74 SASR 411; R v Gallagher (1986) 41 SASR 73; R v Corkin (1989) 50 SASR 580; R v Slater (1989) 152 LSJS 268; R v Tanda (1986) 43 SASR 161; R v Starrett (2002) 82 SASR 115, considered.

R v HOWDEN
[2009] SADC 10
Introduction

The accused, Chris Howden, is charged with aggravated indecent assault, contrary to s 56 of the Criminal Law Consolidation Act 1935. Upon his arraignment the accused pleaded not guilty and elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927. The trial proceeded before me. Following the completion of the closing addresses of counsel I adjourned the trial to consider my verdict. I now deliver my verdict and publish my reasons.
Overview
The complainant CR was born on 21 February 2000. At the time of the alleged offence she was six years and six months old. Her mother MC and father DR were close friends of the accused and his wife Holly Bateman. The accused and his wife lived at Craigmore with their daughter Alannah, aged nine years, and Ms Bateman’s daughter from an earlier relationship, Michaela Bateman, aged 14 years.
On the evening of 15 September 2006, MC visited the accused and his wife at their Craigmore home. CR and her brother SR, aged three years, accompanied their mother. During the evening the children were put to bed. CR went to sleep on a mattress in Alannah’s bedroom. CR alleges that on three occasions the accused entered the bedroom in which she was sleeping and placed one of his hands under her skirt and interfered with her underwear. On the third occasion (the incident upon which the charge is based) the accused pulled the crotch of her underwear to one side and shone a torch on her exposed vagina. Later that night, while MC was driving her children home, CR told her that the accused had touched her knickers. Following their arrival home, CR expanded upon her complaint and demonstrated to her parents the manner in which the accused allegedly interfered with her underwear to expose her vagina. Her parents reported the allegations…

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 Howden

Details

AGLC: R v Howden [2009] SADC 10
Case: [2009] SADC 10
Decision Date: 9 February 2009

CaseChat Overview and Summary

In the District Court of South Australia, the case of R v Howden was heard and determined by His Honour Judge Millsteed. The accused, Chris Howden, was charged with aggravated indecent assault of a child under the age of 10, contrary to section 56 of the Criminal Law Consolidation Act 1935. Howden pleaded not guilty and elected to be tried by a judge alone. The crux of the dispute was whether the complainant, a young child, provided a truthful and reliable account of the alleged offence and whether this account was corroborated by other evidence.

The court had to determine the admissibility of the complainant's unsworn evidence and the reliability of her account. The complainant, who was six years and six months old at the time of the alleged offence, gave unsworn evidence as she was deemed not to understand the obligation to be truthful. The court also had to consider whether the second complaint made by the complainant was admissible and whether there was sufficient corroboration to support her allegations. The accused denied the allegations, and other witnesses provided conflicting accounts.

His Honour Judge Millsteed found that the complainant's account was not sufficiently reliable to convict the accused beyond reasonable doubt. The complainant's unsworn evidence was not corroborated, and there were inconsistencies and improbabilities in her account. The court highlighted the complainant's age, the unsworn nature of her testimony, and the lack of corroboration as factors contributing to the decision. The court concluded that the prosecution had not proved the case beyond reasonable doubt and found the accused not guilty.

The final orders of the court were that Chris Howden was acquitted of the charge of aggravated indecent assault.

Orders