R v McLeod - [2011] SADC 114

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MCLEOD
Criminal Trial by Judge Alone
[2011] SADC 114
Reasons for the Verdict of His Honour Judge Herriman
28 July 2011
CRIMINAL LAW
Charge of persistent sexual exploitation of a child and alternate counts of unlawful sexual intercourse and procuring an act of gross indecency. Complainant and witness suffering intellectual disabilities. Consideration of admissibility of statements of protected witnesses, capacity to give unsworn evidence and issues of corroboration.
Verdict: Guilty of first count.
Evidence Act 1929 (SA) s 9, s 34CA; Criminal Law Consolidation Act 1935 (SA) s 50, referred to.
R v Byerley [2010] SASCFC 3; DPP v Hester [1973] AC 296, considered.

R v MCLEOD
[2011] SADC 114
Introduction

The accused is charged on the first count with persistent sexual exploitation of a child, it being alleged that over a period of not less than three days between 1 January 2007 and 9 December 2009, at various places, he committed more than one act of sexual exploitation of S, a person under the age of 17 years, by:
(1)indecently assaulting her by touching her vagina;
(2) indecently assaulting her by touching her breasts;
(3) procuring an act of gross indecency by causing her to touch his penis; and
(4) having unlawful sexual intercourse with her by penetrating her labia majora with his finger.
The accused is then charged with two further counts, one of unlawful sexual intercourse and one of procuring an act of gross indecency, but they are alternative counts should there be an acquittal on the primary count. They rely respectively upon the matters alleged in particulars (4) and (3) of that count.
It is apparent on all the evidence that the accused had a measure of personal contact with S over at least part of the alleged period, and certainly in the latter part of 2009. That came about through their involvement in an organisation known as the Volunteer Cadet Corps Australia (‘VCCA’ or ‘the corps’), a body established by the accused in 2007 or 2008. Members of the corps were principally children and were loosely described as sea or navy cadets, albeit that they had no formal ties with the Australian Defence Force. The accused had formed the corps after experiencing his son’s participation in another similar group described as the ‘air cadet corps’, but the VCCA rather focussed upon water and boating activities with associated training of a quasi-navy kind.
The age range of participants was between eight and 18 years but the majority of children involved were in the 12 to 14-year-old range and generally the number of participants was between ten and twelve. Corps activities involved military drills such as marching, flag-raising, camping and boating and there was otherwise classroom activity imparting knowledge of a naval flavour.
The corps did not have any formal affiliation with any other groups in Australia but there were similar bodies in the United Kingdom, USA and Canada and, indeed, there had been communication between 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 McLeod

Details

AGLC: R v McLeod [2011] SADC 114
Case: [2011] SADC 114
Decision Date: 28 July 2011

CaseChat Overview and Summary

The case of R v McLeod involved charges of persistent sexual exploitation of a child, unlawful sexual intercourse, and procuring an act of gross indecency against the accused, who was the founder of a volunteer cadet corps. The complainants, S and T, who were intellectually disabled, alleged that the accused sexually exploited them during tutoring sessions at his house. The court had to determine the admissibility of the complainants' statements under Section 34CA of the Evidence Act 1929 (SA) and the reliability of their evidence. The court also had to consider the corroboration of their accounts and the accused's opportunity and grooming conduct. The court found the accused guilty of persistent sexual exploitation of a child, based on the complainants' credible and corroborated accounts, despite the accused's previous good character. The court found it unnecessary to make findings on the alternative counts of unlawful sexual intercourse and procuring an act of gross indecency.

Orders