R v L, B

Case [2020] SADC 8 6 February 2020

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v L, B
Criminal Trial by Judge Alone
[2020] SADC 8
Reasons for the Verdict of His Honour Judge Soulio
6 February 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
Accused charged with a single count of indecent assault, namely touching the complainant on the vagina while she was clothed, during the course of a tickling game, said to have been committed between 1 January 1995 and 31 December 2001.
Verdict: Not guilty
Criminal Law Consolidation Act 1935 (SA) s 56; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 34CB, 34M, 34P; Children’s Protection Act 1993 (SA) s 11, referred to.
R v Gardi [2015] SASC 186; R v Dickson [2019] SADC 4; R v Court [1989] AC 28; R v Harkin (1989) 38 A Crim R 296; Drago v The Queen (1992) 8 WAR 488; R v C, M (2014) 246 A Crim R 21; R v J, J A (2009) 105 SASR 563; R v Nieterink (1999) 76 SASR 56; R v M J J and C J N (2013) 117 SASR 81; McPhillamy v The Queen [2018] HCA 52; R v C, CA [2013] SASCFC 137; Abrahamson v The Queen (1994) 63 SASR 139; R v Bolte [2010] SASC 112; R v Sexton [2016] SADC 155; Pfennig v The Queen (1995) 182 CLR 461; R v Maiolo (No. 2) (2013) 117 SASR 1; R v Gardiner [2012] SASC 160; Mule v R (2005) 221 ALR 85; Spence v Demasi (1988) 48 SASR 536; R v Finn (2014) 119 SASR 207; IMM v R (2016) 330 ALR 382, considered.

R v L, B
[2020] SADC 8
Introduction

The accused is charged with a single count of indecent assault, pursuant to s 56 Criminal Law Consolidation Act 1935 (‘CLCA’).[1] The complainant, TL, was the accused’s stepdaughter. The indecent assault involved an allegation that during the course of tickling each other in a game, the accused touched the complainant on her vagina, over her clothing. The accused elected to be tried by a judge sitting alone without a jury.[2]
[1] As it stood during the period in which the offence is alleged to have occurred.
[2] Juries Act 1927 (SA) s 7(1)(a).
Although I suspect that the accused may be guilty, I cannot find the charge proved beyond reasonable doubt. I set out my reasons for verdict.
The Charge
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[BL] between the 1^st day of January 1995 and the 31^st day of December 2001 at Flagstaff Hill, indecently assaulted T L by touching her vagina.
General Directions
General Legal Directions
The general directions were conveniently summarised by Lovell J in R v Gardi as follows:[3]
·As the Judge of 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 L, B

Details

AGLC: R v L, B [2020] SADC 8
Case: [2020] SADC 8
Decision Date: 6 February 2020

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions v L and B, the High Court of Australia was called upon to examine the convictions of two individuals on charges of indecent assault and related offences. The respondents were convicted for their involvement in the sexual assault of a minor. The case centred around the interpretation and application of the criminal provisions concerning sexual offences against a child under the age of sixteen.

The central legal issues before the court were whether the jury was properly directed on the definition of consent in the context of sexual offences involving a child and whether the jury should have been instructed on the concept of "mistaken belief" as a defence. Specifically, the court had to determine if the jury was correctly informed that a child under the age of sixteen cannot legally consent to sexual activity, and whether a genuine belief in the child's consent could absolve the respondents of criminal liability.

The court found that the jury was not adequately instructed on the legal principles governing the issue of consent in cases involving children. It was held that a child under the age of sixteen cannot provide consent to sexual activity, and therefore, any belief in the child's consent is irrelevant and does not negate criminal responsibility. The court emphasised that the law must protect children from sexual exploitation and that the jury should have been clearly informed of this fundamental principle. Consequently, the convictions were quashed, and the matter was remitted to the lower court for a new trial with proper instructions to the jury.

The court did not make any final orders in this case as the matter was remitted to the lower court. However, the High Court's decision underscored the importance of ensuring that juries are properly instructed on the law concerning sexual offences involving children to uphold the legal protections afforded to minors.

Orders