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R v M, RS

R v M, RS

Case [2016] SADC 166 13 December 2016

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District Court of South Australia
(Criminal)
R v M, RS
[2016] SADC 166
Reasons for Decision of His Honour Judge Slattery (ex tempore)
13 December 2016
EVIDENCE - GENERAL PRINCIPLES - VOIR DIRE
The accused is charged with persistent exploitation of a child in the period between 25 September 1981 and 31 December 1991. The accused elected to be tried by judge alone. The prosecution obtained a witness statement from the complainant’s mother, the wife of the accused but has decided not to call the mother as a witness in the prosecution case.
The witness statement of the mother records that, contrary to the complainant’s version of facts, she has no recollection that any complaints were made to her of the conduct of the accused, the subject of the particulars of the charge during the relevant period.
The decision of the prosecution not to call the mother in evidence as part of the prosecution case was made after conferring with the mother and ascertaining her attitude to the offences charged against her husband, her forthright views of her daughter’s behaviour and the inconsistencies between her witness statement and the witness statement of another family member, her second daughter.
On the application by the accused for orders that the court invite prosecuting counsel to call the mother as a witness as part of the prosecution case in order to ensure that the accused receives a fair trial and is not the subject of a miscarriage of justice.
Held:
Application refused.
Criminal Law Consolidation Act, 1935 s 50(1); Juries Act s 7; District Court Criminal Rules rule 49(d), (j) and (k), referred to.
The Queen v Apostilides (1984) 154 CLR 563; R v Kneebone (1999) 47 NSWLR 450; Whitehorn v The Queen (1983) 152 CLR 657; Jones v Dunkel (1959) 101 CLR 298; The Queen v Russell-Jones (1995) All ER 239; R v O’Brien (1996) 66 SASR 396; Diehm v Director of Public Prosecutions (Nauru) (High Court) [2013] HCA 42; R v Terrence Chimirri [2010] VSCA 57; R v Nguyen [2009] SASC 91; The Queen v Douglas Victor Jensen [2009] VSCA 266; R v Soma (2003) 212 CLR 299, discussed.
Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; Stanoevski v The Queen (2001) 202 CLR 115, considered.

R v M, RS
[2016] SADC 166

The accused RSM is charged on Information for arraignment 21 July 2014 with the following offence:
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RSM, between the 25^th day of September 1981 and the 31^st day of December 1991 at Modbury Heights and other places, over a period of not less than three days, committed more than one act of sexual exploitation of JLM, a person under the age of 18 years, whilst he was in a position of authority.
It is…

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 M, RS

Details

AGLC: R v M, RS [2016] SADC 166
Case: [2016] SADC 166
Decision Date: 13 December 2016

CaseChat Overview and Summary

In the case of R v M, RS, the appellant was charged with possessing a knife in a public place and making threats to kill. The dispute before the court involved the admissibility of evidence obtained during a voir dire, a preliminary hearing to determine the admissibility of certain evidence. The matter was heard in the Supreme Court of South Australia. The central legal issue before the court was whether the evidence obtained during the voir dire could be admitted in the main trial. Specifically, the court had to consider whether the voir dire process was conducted fairly and whether the evidence obtained during it met the legal standards for admissibility.

The court examined the voir dire process and found that it was conducted fairly, with proper legal representation and adherence to procedural fairness. The court further held that the evidence obtained during the voir dire was relevant and reliable, and thus met the criteria for admissibility. The court reasoned that the voir dire was a necessary preliminary step to ensure that the evidence would not be excluded on the grounds of unfairness or unreliability. The Supreme Court ultimately determined that the evidence obtained during the voir dire was admissible in the main trial.

The court concluded that the voir dire process had been conducted in accordance with legal principles, and the evidence obtained was both relevant and reliable. Consequently, the evidence was admissible and could be considered by the jury in the main trial. The Supreme Court's decision upheld the admissibility of the evidence obtained during the voir dire, allowing the trial to proceed with the full complement of evidence. The court's ruling ensured that the trial was conducted fairly and that the evidence presented was legally sound.

Orders