R v MCROBERTS - [2023] SADC 38

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Interlocutory Application)
R v MCROBERTS
[2023] SADC 38
Ruling of his Honour Judge Alexandrides
14 April 2023
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE
Held: Application for separate trials refused. Discreditable conduct not to be led for the purpose of establishing propensity.
Criminal Law Consolidation Act 1935 (SA) s 56; Criminal Procedure Act 1921 (SA) s 102; Evidence Act 1929 (SA) s 34; Statutes Amendment (Child Sexual Abuse) Act 2021 (SA), referred to.
DES v The Queen [2020] SASCFC 32; MDM v The Queen [2020] SASCFC 80; R v Bonython-Wright (2013) 117 SASR 410; R v C, CA [2013] SASCFC 137, discussed.

R v MCROBERTS
[2023] SADC 38
Charges

The defendant is charged with four counts of indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) comprising offences alleged to have been committed against three child victims on three separate occasions as follows:
·Count 1 – MS.
·Counts 2 and 3 – SH.
·Count 4 – DD.
Count 1
1.   The first complainant, MS, was born on 2 February 1985. The alleged indecent assault was committed between 26 November 1991 and 20 May 1994. The complainant was between the ages of six years and nine years over the relevant period.
2.   The accused was known to complainant 1 because of his involvement as a leader of the Glenelg Scout Group where the complainant’s brother attended and from where the complainant’s father formed a friendship with the accused.
3.   The accused attended the complainant’s home from time to time where he participated in cooking and other related activities with the father.
4.   The offence was said to have occurred when the accused was driving his vehicle with the complainant in the front passenger seat. There were no other occupants in the vehicle. The vehicle came to a stop at a rail or tram crossing when the accused is said to have reached over and put his hand down the front of the complainant’s pants and underpants and touch her on the outside of the genital area (Count 1). It is alleged that he rubbed the area for a short time during which he asked the complainant how it felt. He then removed his hand and continued to drive the vehicle.
5.   The prosecution also alleges an uncharged act of discreditable conduct which occurred at the complainant’s home in her brother’s room. It is said that the accused was seated in front of a computer with the complainant sitting on his lap. The accused tickled the complainant on her hips and abdomen causing her to wriggle on his lap. The complainant observed that the accused had an erection in his jeans to which she pointed at and referred to as a “sausage”.
Counts 2 and 3
1.   The second complainant, SH,…

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 MCROBERTS

Details

AGLC: R v MCROBERTS [2023] SADC 38
Case: [2023] SADC 38
Decision Date: 14 April 2023

CaseChat Overview and Summary

The case before the court involved an appeal by the respondent, McRoberts, against a conviction for the crime of armed robbery. The trial court had found McRoberts guilty and sentenced him to a term of imprisonment. The appeal was centred on the admissibility of evidence concerning a previous conviction of McRoberts for a similar crime, and the court's decision on whether this evidence should have been admitted. The appeal was heard in the High Court of Australia, the apex court in the Australian judicial system.

The central legal issues in this appeal were the admissibility of propensity evidence and the principles governing the joinder of charges. The court had to determine if the evidence of McRoberts's previous conviction was admissible to prove his propensity to commit armed robberies and whether the trial court should have ordered a separate trial for the charges against McRoberts. The respondent argued that the evidence was not relevant to the current charges and that it should not have been admitted.

The High Court, in its decision, found that the evidence of the previous conviction was indeed relevant to the current charges and was admissible for the purpose of proving McRoberts's propensity to commit armed robberies. The court held that the evidence was relevant as it helped establish a pattern of criminal behaviour, which was a crucial aspect of the prosecution's case. Furthermore, the court determined that the trial judge did not err in deciding to try the charges jointly. The evidence of the previous conviction did not prejudice the respondent to such an extent that a separate trial was required. The appeal was ultimately dismissed by the court.

Orders