R v Kiely - [2016] SADC 59

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KIELY
Criminal Trial by Judge Alone
[2016] SADC 59
Reasons for the Verdict of His Honour Judge Chivell
16 June 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
Accused charged with aggravated indecent assault. Allegation that he approached an eight-year-old boy in a shopping centre and touched his penis through his clothing. Statements and evidence given by the complainant (at the time of trial aged nine) and his sister (at the time of trial aged 11) – issues of protected witnesses, evidence of children and unsworn evidence. Prosecution case proved beyond reasonable doubt.
Verdict: Guilty.
Evidence Act 1929 (SA) s 9, s 34, s 34CA, s 34D, s 34M , referred to.
R v Byerley (2010) 107 SASR 517; H, SA v Police (2013) 116 SASR 547; R v Cheng [2015] SASCFC 189; R v J, AP (2012) 113 SASR 529; R v Haak (2012) 112 SASR 315; R v Murray (1987) 11 NSWLR 12; Robinson v The Queen (1999) 197 CLR 162, considered.

R v KIELY
[2016] SADC 59

Mr Kiely is charged with aggravated indecent assault. He pleaded not guilty. He was represented by Mr Cole.
The charge is aggravated because the alleged victim was under the age of 14 years. He was eight years old on 9 June 2015, when the relevant events took place. I will call him ‘C’, and his 10-year-old sister ‘P’.
C and P lived with their mother, ‘M’, at Moana Heights. The local IGA supermarket was about 200 metres away from their house. M said that the children would occasionally go to the shops together without her supervision.[1]
[1] T 106.
On 9 June 2015, M asked C and P to go to the supermarket to get some butter. They left at between 4:00 and 4:30 pm. About 20 to 30 minutes later, P telephoned M and, as a result of that, she went directly to the supermarket. When she got there, she noted that C was ‘shaken up’.[2] She took the children home and spoke to them. They told her that a man had touched C on the penis. She called the police.
[2] T 108.
Mr Kiely was arrested at the Adelaide Airport on 26 June 2015 and charged with aggravated indecent assault. He was in the process of returning home to Perth.
C’s Interview with the Police
C was interviewed by the police on 10 June 2015. The disk containing a record of the interview is Exhibit P3. It was tendered, without objection, pursuant to s 34CA of the Evidence Act 1929.
Evidence Act, s 34CA
I was satisfied that the statements had sufficient probative value to be admitted.[3] C was available to be called as a witness in the proceedings.[4] Mr Cole sought and was granted permission to cross-examine C on certain issues.[5]
[3] s 34CA(1)(a).
[4] s 34CA…

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 Kiely

Details

AGLC: R v Kiely [2016] SADC 59
Case: [2016] SADC 59
Decision Date: 16 June 2016

CaseChat Overview and Summary

The case of R v Kiely involved the accused being charged with the offence of aggravated indecent assault. The alleged incident involved the accused approaching an eight-year-old boy in a shopping centre and making inappropriate contact with the boy’s genitals through his clothing. The trial included statements from the complainant, who was nine years old at the time of the trial, and his sister, who was 11 years old at that time. The court had to consider the admissibility of evidence from protected witnesses, the reliability of child witnesses, and the acceptance of unsworn evidence. The primary legal issues revolved around whether the prosecution had successfully proven the elements of the offence beyond reasonable doubt, considering the nature of the evidence presented.

The court evaluated the credibility and reliability of the child witnesses, weighing their statements against the defence’s arguments. The judge considered the procedural protections in place for child witnesses, including the necessity for the children to give unsworn evidence. The court also examined the context in which the statements were made and the consistency of the children’s accounts. Ultimately, the judge found that the prosecution had presented a case that met the required standard of proof, leading to a conviction for the accused.

In reaching its decision, the court concluded that the evidence provided by the child witnesses, despite being unsworn, was sufficiently reliable and consistent to establish the offence beyond reasonable doubt. The court found that the children’s accounts were credible and that the accused’s actions constituted the offence of aggravated indecent assault. The judge accepted the prosecution’s argument that the evidence, when viewed in its entirety, pointed unequivocally to the accused’s guilt.

The court ordered that the accused be found guilty of the charge of aggravated indecent assault. The specific orders included the imposition of a sentence, which was not detailed in the excerpt. The decision underscored the importance of carefully evaluating child witness testimony and the standards of proof in criminal cases.

Orders