R v MARTIN - [2006] SADC 131

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MARTIN
Criminal Trial by Judge Alone
[2006] SADC 131
Reasons for the Verdict of His Honour Judge Chivell
8 December 2006
CRIMINAL LAW
Particular offences. Offences against the person - sexual offences.
Accused charged with unlawful sexual intercourse with a person under the age of 12 years.
Trial by Judge without a jury - vulnerable witness applications - consideration of permissible use of uncharged conduct - consideration of use of complaint evidence - evidence of distress - verdict not guilty.
Juries Act, 1927 s7; Criminal Law Consolidation Act, 1935 s49(7); Evidence Act, 1929 s13(1), s13(2), s13(10)(a)(c), s13(3), s13(4), s13(5), s45A(b), s34CA, referred to.
R v Nieterink (1999) 76 SASR 56; R v I,K (2004) 89 SASR 406; R v Gallagher (1986) 41 SASR 73; R v Corkin (1989) 50 SASR 580, considered.

R v MARTIN
[2006] SADC 131

The Accused is charged on Information with unlawful sexual intercourse with a person under the age of 12 years, contrary to s49(1) of the Criminal Law Consolidation Act, 1935. The alleged offence occurred on 6 November 2003 at Plympton. It is an agreed fact that the alleged victim, whom I will call “A”, was born on 12 October 1992, and was aged 11 years at the relevant time.
The Accused elected to be tried by Judge sitting without a jury (Juries Act, 1927 s7). He pleaded not guilty upon arraignment.
Preliminary Directions
I direct myself that the elements of the offence of unlawful sexual intercourse are:
1.there must be an act of sexual intercourse. In this context, sexual intercourse includes the penetration of the vagina by a finger; and
2.the act of sexual intercourse must be unlawful. Section 49(1), as it was then, made sexual intercourse with a person under 12 years unlawful. Since the age of the alleged victim is agreed, this element has been proved beyond reasonable doubt. Consent is irrelevant (s49(7)).
Vulnerable Witness Applications
A gave evidence by means of closed circuit television from a position outside the courtroom (s13(1), Evidence Act, 1929). This was opposed by the Accused on the basis that she should make her allegation “to his face”. That is clearly contrary to the spirit and intent of the vulnerable witness provisions in the Evidence Act. A was a vulnerable witness both by virtue of her age, and the fact that she is the alleged victim of a sexual offence (s13(10)(a), (c)).
The Accused could point to no prejudice which might result from making such an order (s13(3)), and none of the factors in s13(4) or (5) were relevant either.
In those circumstances, I thought it was appropriate to make the order.
A’s mother, whom I will call “T”, also gave sworn evidence, and I made an order pursuant to s13(1) and (2) that a screen be placed which obscured her view of the Accused when she gave evidence. Ms Trengove, counsel for the Director of…

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 MARTIN

Details

AGLC: R v Martin [2006] SADC 131
Case: [2006] SADC 131
Decision Date: 8 December 2006

CaseChat Overview and Summary

In the District Court of South Australia, the court presided over by His Honour Judge Chivell delivered a verdict of not guilty in the case of R v Martin. The accused was charged with unlawful sexual intercourse with a person under the age of 12 years. The court had to decide on the credibility of the prosecution's case, which included the testimony of the complainant, her mother, and medical evidence. The complainant's evidence was clear but had some inconsistencies that the court considered significant. The complainant's mother's testimony also contained contradictions and raised concerns about her credibility. The medical evidence, while it could be seen as corroborative, had limited probative value due to the nature of the injury described. The court found reasonable doubt in the prosecution's case and acquitted the accused.

The legal issues in this case revolved around the credibility and sufficiency of the prosecution's evidence. The court had to assess the credibility of the complainant and her mother, consider the medical evidence, and evaluate the impact of the alleged uncharged acts on the current charges. The court also had to decide whether the evidence met the beyond reasonable doubt standard required for a criminal conviction. The reasoning of the court focused on the inconsistencies in the testimonies, the credibility of the witnesses, and the probative value of the medical evidence. Ultimately, the court concluded that there was reasonable doubt about the accused's guilt, leading to the verdict of not guilty.

Orders