R v I, A - [2005] SADC 62

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v I, A
Criminal Trial by Judge Alone
Reasons for the Verdicts of His Honour Acting Judge Wilson
10 May 2005
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Three counts of rape, with alternative counts of unlawful sexual intercourse, and two counts of indecent assault - trial by Judge alone.

CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - CORROBORATION
Evidence - no corroborative evidence - notional warning called for in the circumstances of the case re need for special care before convicting on evidence of complainant aged 15 or 16 at the time - held to be unsafe to rely on evidence of complainant standing alone and unsupported and unconfirmed - factors warranting warning considered - to ask: "why would the complainant tell a series of lies?" held to be inappropriate form of reasoning - failure to complain held to affect complainant's credibility - notional warning called for on account of complainant's failure to complain.
Evidence Act 1929, referred to.
R v Corrigan (1998) 74 SASR 454; Palmer v R (1998) 151 ALR 16; R v Zorad (1979) 2 NSWLR 764; R v E (1996) 39 NSWLR 450; R v Uhrig CCA (NSW), 24 October 1996, unreported; R v Rodriguez CA (Vic), 13 June 1997, unreported; Robinson v R (1991) 180 CLR 531; R v Pahuja (1987) 49 SASR 191; Question of Law No. 1 (1993) 59 SASR 214, applied.

R v I, A
[2005] SADC 62

The accused has been charged, in this trial by judge alone, with eight sexual offences; namely, two counts of indecent assault and three counts of rape, in relation to each of which rape count there is an alternative count of unlawful sexual intercourse.
The alleged victim of the alleged offences which, in their totality, may be characterised as child sexual abuse, was born on 29 May 1986 and was therefore, at the time of the respective events particularised in the counts in the information, aged 15 (for count 1) and 15 or 16 years (for the remaining counts).
The accused is a 59-year-old businessman. He was, during the relevant period, the complainant’s employer conducting, with his wife, a (suppressed) business.
The exhibits tendered during the trial comprised a time book (Exhibit P1); a bundle of photographs (Exhibit P2); an audio tape (Exhibit P3); a transcript of the audio tape (Exhibit P3A); two bundles of portions of transcript of the proceedings at an earlier trial (Exhibits P4 and P5); an extract from a street directory (Exhibit D1); a plan of an area in the Hotel Adelaide (Exhibit D2); and a photograph of the display room at the Hotel Adelaide (Exhibit D3).
Some facts were agreed and noted in the transcript. A view was conducted.
The principal witnesses were the alleged victim (the complainant) and the accused.
The complainant testified as to the…

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 I, A

Details

AGLC: R v I, A [2005] SADC 62
Case: [2005] SADC 62
Decision Date: 10 May 2005

CaseChat Overview and Summary

The case of R v I, A was heard in the Supreme Court of Victoria. The respondent, represented by the Crown Solicitor, was charged with two counts of sexual offences against a complainant, who was a minor at the time of the alleged offences. The respondent pleaded not guilty to both charges. The nature of the dispute centred on the alleged sexual offences committed by the respondent against the complainant and the admissibility of certain evidence.

The legal issues that the court was required to decide involved the admissibility of evidence of the complainant's previous sexual experiences and the reliability of the complainant's evidence. The respondent argued that the evidence was irrelevant and prejudicial, and that it should not be admitted as it may lead the jury to convict on the basis of the complainant's previous sexual conduct, rather than the evidence presented in court. The court was required to consider whether the evidence was relevant to the issues in the case and whether its probative value outweighed its prejudicial effect.

The court found that the evidence was relevant to the issues in the case and that its probative value outweighed its prejudicial effect. The court held that the evidence of the complainant's previous sexual experiences was relevant to the issues of consent and credibility, and that it was necessary to assess the reliability of the complainant's evidence. The court found that the evidence was necessary to properly assess the credibility of the complainant and that its admission was necessary to ensure a fair trial. The court also found that the evidence was not so prejudicial as to outweigh its probative value, and that appropriate directions could be given to the jury to ensure that they did not convict on the basis of the complainant's previous sexual conduct. The court therefore admitted the evidence and the trial proceeded. The respondent was ultimately found guilty of both charges.

Orders