R v K, NW - [2013] SADC 136

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v K, NW
Criminal Trial by Judge Alone
[2013] SADC 136
Reasons for the Verdicts of His Honour Judge David Smith
16 October 2013
CRIMINAL LAW
Accused charged with two counts of unlawful sexual intercourse with a child aged between eight and nine years - offences alleged to have been committed between November 1978 and November 1980 - complaint made to mother in 1986 - allegations not reported to Police until 2010.
Consideration of onus of proof, complaint evidence and the forensic disadvantage suffered by the accused by reason of the late emergence of the complaint.
Consideration also of whether a previous inconsistent statement of the complainant, proved in evidence by the Defence, for the purposes of impugning credibility of her sworn testimony, can also be relied upon by the Prosecution to bolster it.
Consideration of jurisdiction of the District Court and Youth Court where there is a contention by the accused that at the time of the alleged offending he was a youth.
Verdicts: Accused guilty of both Counts.
Criminal Law Consolidation Act 1935 (SA) s 49(1); Evidence Act 1929 (SA) ss 28,29, s 34CB(2), s 34M; Young Offenders Act 1993 (SA) ss 6,16,17,17A; Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) s 5, referred to.
Douglass v R (2012) 290 ALR 699; Palmer v The Queen (1998) 193 CLR 1; R v Abdulla (2010) 200 A Crim R 365; Driscoll v The Queen (1977) 137 CLR 517; Urbano v R (1983) 9 A Crim R 170; R v England [2013] SASCFC 79; R v Titijewski (1970) VR 371; Sarret v Police [2012] SASC 37; Hargraves v The Queen (2011) 85 ALJR 1254; R v Fraser (1995) 65 SASR 260; R v Karapanzk [2008] SASC 126; R v Connolly (No 2) [1991] 2 Qd R 171, considered.

R v K, NW
[2013] SADC 136
Introduction

The Accused is charged on Information with:
First Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
NWK between the 14^th day of November 1978 and the 13^th day of November 1980 at ……… had sexual intercourse with CLK, a person of the age of eight or nine years, by inserting his penis into her vagina.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
NWK between the 14^th day of November 1978 and the 13^th day of November 1980 at ………. had sexual intercourse with CLK, a person of the age of eight or nine years, by causing her to perform an act of fellatio on him.
In the text which follows:
-NWK        is the Accused and uncle of the Complainant
-CWK        is the Co-Accused who is being dealt with in the Youth           Court and is the cousin of the Accused
-CLK          is the Complainant
-MYK         is the Complainant’s mother
-CK             is the Complainant’s deceased father
-RK             is 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 K, NW

Details

AGLC: R v K, NW [2013] SADC 136
Case: [2013] SADC 136
Decision Date: 16 October 2013

CaseChat Overview and Summary

In the District Court of South Australia, R v K, NW dealt with charges against the accused, NWK, for two counts of unlawful sexual intercourse with a child aged between eight and nine years, allegedly committed between November 1978 and November 1980. The complainant, CLK, reported the matter to her mother in 1986 but did not report it to the police until 2010. The key legal issues were the onus of proof, the credibility of the complainant's evidence, and the forensic disadvantage suffered by the accused due to the late emergence of the complaint. The court also considered whether a previous inconsistent statement made by the complainant could be used by the prosecution to bolster her credibility. Additionally, the jurisdiction of the District Court was questioned because the accused claimed that he was a youth at the time of the alleged offending.

The court found the complainant's evidence credible and reliable, despite the passage of time and some inconsistencies with previous statements. The court accepted the complainant's explanation for the inconsistencies and found that they did not undermine her overall credibility. The court found that the prosecution had proved beyond reasonable doubt that the accused committed the acts of unlawful sexual intercourse. The court also determined that it had jurisdiction to try the accused as it was satisfied, on the balance of probabilities, that the accused was over 18 years old at the time of the alleged offending.

The court commented on the difficulties arising from the respective jurisdictions of the Youth Court and the District Court, particularly the narrow discretion to commit a youth for trial in an adult court and the lack of jurisdiction to deal with a person once it becomes clear that they are a youth. The court suggested that the discretion to commit should be widened to include any other case where the interests of justice so demand. The court also found that the District Court should have the power to sit as the Youth Court and complete the trial in such situations.

Orders