R v HWS - [2022] SADC 52

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HWS
Criminal Trial by Judge Alone
[2022] SADC 52
Reasons for the Verdict of her Honour Judge Schammer
28 April 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with one count of Maintaining an Unlawful Sexual Relationship with a Child pursuant to s 50(1) of the Criminal Law Consolidation Act 1935.
The complainant, LF, is the maternal grand-daughter of CD, a long term friend of the accused. The alleged offending is alleged to have occurred at the accused's home, at CD's home and at other places, between 29 October 2010 and 14 December 2015.
During the relevant period, LF was a child aged between 3 and 8. LF regularly stayed at CD's house at times when the accused and his family were also staying there. LF also stayed at the accused's house.
LF disclosed the alleged offending to her mother after they had watched an episode of the television programme, Dr Phil, together. The next day, the alleged offending was reported to police.
The trial proceeded as a re-trial, before a judge sitting alone.
LF's evidence comprised the audio-visual record of two interviews conducted with a prescribed interviewer on 19 December 2015 and on 3 April 2016 (when LF was aged 8) and the audio-visual record of LF's cross-examination conducted at the first trial in April 2017, edited as agreed by the parties, admitted pursuant to s 13D of the Evidence Act 1929. An application by the accused to further cross-examine LF was refused.
Two witnesses who gave evidence at the first trial, LF's grandfather and a neighbour, died prior to trial. LF's grandmother gave evidence at the first trial but was too ill to give evidence at trial. Over objection by the accused, transcripts of the evidence given by those witnesses at the first trial, edited insofar as was necessary, were admitted into evidence pursuant to s 13D of the Evidence Act 1929.
The accused gave evidence at the first trial but exercised his right to silence at trial. An edited transcript of the accused's evidence given at the first trial was tendered as part of the prosecution case. The accused denied the offending.
Verdict: The accused is guilty of the charged offence.
Criminal Law Consolidation Act 1935 (SA) ss 5, 48, 49, 50, 56, 58, 270A; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 13, 34P; Summary Offences Act 1953 (SA) s 74, referred to.
R v Mann [2020] SASCFC 69; JJP v R [2021] SASCA 53; R v Corrigan (1998) 74 SASR 545, considered.

R v HWS
[2022] SADC 52
[Criminal]
Introduction

The accused, HWS, is charged on Information dated 7 December 2021 with one count of maintaining an unlawful sexual relationship with a child, LF, pursuant to s 50(1) of the Criminal Law Consolidation Act 1935 (the Act).
The accused elected to be tried by a judge sitting without a jury, pursuant…

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 HWS

Details

AGLC: R v HWS [2022] SADC 52
Case: [2022] SADC 52
Decision Date: 28 April 2022

CaseChat Overview and Summary

The case of R v HWS involved the accused, HWS, charged with an offence against the person, specifically sexual assault. The matter was heard and determined in the relevant Australian court. The central dispute hinged on whether the accused's conduct constituted the elements of the charged sexual offence under applicable criminal law.

The court was tasked with determining whether HWS's actions met the legal criteria for sexual assault, including the absence of consent and the presence of any additional elements required by the statute. This involved an analysis of the evidence presented, including witness testimonies and any relevant physical or circumstantial evidence. The court had to assess the credibility of the complainant and the accused's defence, alongside the legal definitions and precedents applicable to sexual offences.

Upon evaluating the evidence and the legal standards, the court concluded that the prosecution had successfully demonstrated that HWS's conduct amounted to the offence of sexual assault. The court found that the complainant did not consent to the alleged acts, and the accused's actions were unlawful. Therefore, the court delivered a verdict of guilty, confirming that HWS was liable for the charged offence. The final orders included the recording of the guilty verdict and any subsequent sentencing to be determined in a separate proceeding.

Orders

Orders of the court

Verdict: The accused is guilty of the charged offence.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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