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R v L, DM

R v L, DM

Case [2008] SADC 176 22 December 2008

Indecent Assault

Incest

Admissibility of Evidence

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v L, DM
Criminal Trial by Judge Alone
[2008] SADC 176
Reasons for the Verdicts of His Honour Judge Millsteed
22 December 2008
CRIMINAL LAW
Trial by judge alone – accused charged with seven counts of indecent assault and one count of incest – offences alleged to have been committed 20-25 years ago on his daughters TPW and BKL - application for counts relating to one complainant to be tried separately from counts relating to other complainant on grounds of prejudice - application rejected - held accused pleaded guilty to count 1 (indecent assault against TPW) but not guilty to counts 2-8 – evidence relating to count 1 held to be admissible in relation to other counts concerning TPW as evidence of inter alia, the accused’s sexual attraction for TPW – evidence of uncharged acts of breast touchings of TPW and BKL held to be admissible as evidence of the accused’s sexual attraction for each complainant - accused found guilty of counts 2-8.
Criminal Law Consolidation Act 1935 (SA) s 56, s 72, s 278(1), s 278(2); Juries Act 1927 s 7; Criminal Law Consolidation Amendment Act 1967 s 11; Evidence Act 1929 s 34I, referred to.
De Jesus v The Queen (1986) 61 ALJR 1; Hoch v The Queen (1988) 165 CLR 292; Abrahamson v The Queen (1994) 63 SASR 139; Longman v The Queen (1989) 168 CLR 79; Crampton v The Queen (2000) 206 CLR 161, considered.

R v L, DM
[2008] SADC 176
INTRODUCTION

The accused, DML, is charged on Information with seven counts of indecent assault (counts 1-7) and one count of incest (count 8). The Information is in the following terms:
First Count
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
[DML] between the 1^st day of January 1971 and the 31^st day of December 1975 at Goolwa, indecently assaulted [TPW].
Second Count
Indecent Assault. (Ibid).
Particulars of Offence
[DML] between the 1^st day of January 1972 and the 31^st day of December 1975, at Goolwa, indecently assaulted [TPW].
Third Count
Indecent Assault. (Ibid).
Particulars of Offence
[DML] between the 1^st day of January 1971 and the 31^st day of December 1975, at Goolwa, indecently assaulted [TPW].
Fourth Count
Indecent Assault. (Ibid).
Particulars of Offence
[DML] between the 1^st day of January 1974 and the 31st day of December 1975, at Goolwa, indecently assaulted [TPW].
Fifth Count
Indecent Assault. (Ibid).
Particulars of Offence
[DML] between the 28^th day of July 1974 and the 28^th day of July 1976, at Goolwa, indecently assaulted [BKL].
Sixth Count
Indecent Assault. (Ibid).
Particulars of Offence
[DML] between the 28^th day of July 1974 and the 28^th day of July 1976, at Goolwa, indecently assaulted [BKL].
Seventh Count
Indecent Assault. (Ibid).
Particulars of Offence
[DML] between the 1^st day of January 1975 and 31st December 1976, at Goolwa, indecently assaulted…

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, DM

Details

AGLC: R v L, DM [2008] SADC 176
Case: [2008] SADC 176
Decision Date: 22 December 2008

CaseChat Overview and Summary

In the case of R v L, DM, the defendant faced multiple charges, including seven counts of indecent assault and one count of incest. The offences were alleged to have been committed against his daughters, TPW and BKL, approximately 20-25 years prior. The trial took place in the relevant court, where the defendant pleaded guilty to the first count of indecent assault against TPW but maintained his innocence for the remaining counts. The primary legal issues that the court had to address were the admissibility of certain evidence and the application to try counts relating to one complainant separately from those concerning the other complainant due to potential prejudice.

The court was tasked with determining whether the evidence relating to the first count of indecent assault against TPW could be used in the trial of the other counts involving TPW and whether evidence of uncharged acts of breast touching involving both TPW and BKL could be admitted as evidence of the accused's sexual attraction towards each complainant. The court also needed to decide on the application to separate the counts relating to one complainant from those relating to the other on the grounds of prejudice. The court rejected the application for a separate trial, finding that the evidence of the accused's sexual attraction for each complainant was relevant and admissible in the context of the trial. Consequently, the accused was found guilty of counts 2-8.

The court's reasoning focused on the necessity to consider the broader context of the charges, including the nature of the alleged offences and the relationship between the accused and the complainants. The evidence of the accused’s sexual attraction for each complainant was deemed relevant to understanding the circumstances and credibility of the charges. As a result, the accused was found guilty of all counts except the first count to which he had pleaded guilty.

Orders