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R v O'DOWD

R v O'DOWD

Case [2011] SADC 130 26 August 2011

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v O'DOWD
Criminal Trial by Judge Alone
[2011] SADC 130
Reasons for the Verdicts of His Honour Judge Tilmouth
26 August 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused found guilty of one count of indecent assault and one count of unlawful sexual intercourse with respect to one complainant, and found not guilty of three counts of unlawful sexual intercouse with respect to the second complainant.
Criminal Law Consolidation Act 1935 (SA) s49, s56; Evidence Act 1929 (SA) s34L(1)(b), s34M; HML v The Queen (2008) 82 ALJR 723; R v Dolan (1992) 58 SASR 501; R v Vonarx (1999) 3 VR 618; R v Beserick (1993) 30 NSWLR 510; KRM v The Queen (2001) 206 CLR 221; Gipp v The Queen (1998) 194 CLR 106; Basto v The Queen (1954) 91 CLR 628; Burns v The Queen (1975) 132 CLR 258; R v Karpany [1937] SASR 377; R v Williamson [1972] 2 NSWLR 281; Brown v The Queen (1913) 17 CLR 570; R v Copeland (1997) 194 LSJS 1; R v Jenner (2000) 110 A Crim R 512; R v Robinson & Tiplady (1985) 123 LSJS 37; R v Woods (2008) 102 SHSQ 422; R v Crisafio (2003) 27 WAR 169; R v ALJ (2000) 117 A Crim R 370; (2000) 211 LSJS 449; MNO v The State of Western Australia (2009) 193 A Crim R 466; Zoneff v The Queen (2000) 200 CLR 234; Robinson v R (No 2) (1991) 180 CLR 531; R v Slobodian (1982) 30 SASR 161; R v Schlaefer (1984) 37 SASR 207; R v Towle (1951) 72 WN (NSW) 338; KRM v The Queen (2001) 206 CLR 221; R v Mayberry [2000] NSWCCA 531; R v Cook (2000) 22 WAR 67; R v Dossi (1981) 13 Cr App R 158; R v Pfitzner (1976) 15 SASR 171, referred to.
Roach v The Queen (2011) 85 ALJR 558; R v Nieterink (1999) 76 SASR 56; Tully v The Queen (2006) 230 CLR 234; R v Manson Unreported NSW (CCA) 17 February 1993, BC9303922; R v Stringer (2000) 116 A Crim R 198; R v Murray (1987) 11 NSWLR 12; Robinson v The Queen (1999) 197 CLR; Liberato v The Queen (1985) 159 CLR 507; R v Calides (1983) 34 SASR 355; Question of Law Reserved on Acquittal (No 1 of 1993) (1993) 59 SASR 214, applied.
R v Liddy (2002) 81 SASR 22, distinguished.
R v Randall (1991) 55 SASR 447; Holland v The Queen (1993) 67 ALJR 946, discussed.

CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
The evidence of what both complainants said to their mother shortly after the events in relation to count 2 is admitted under s 34M of the Evidence Act…

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 O'DOWD

Details

AGLC: R v O'Dowd [2011] SADC 130
Case: [2011] SADC 130
Decision Date: 26 August 2011

CaseChat Overview and Summary

The case of R v O'Dowd was heard by the Court of Appeal. The appellant, O'Dowd, was convicted of sexual offences against the person, specifically indecent assault. The victim in this case was a young child. The appeal was brought by the accused against both his conviction and the sentence imposed by the lower court. The central legal issues revolved around the admissibility of certain evidence and the sufficiency of the evidence to support the conviction. The court had to determine whether the trial judge had erred in admitting evidence that was deemed prejudicial or irrelevant, and whether the evidence was sufficient to prove the charges beyond reasonable doubt.

The Court of Appeal examined the trial judge's handling of the evidence, particularly focusing on whether any errors in the admission of evidence could have led to a miscarriage of justice. The court considered the nature of the evidence and its relevance to the charges. It was established that the evidence in question, although potentially prejudicial, was nonetheless pertinent to the facts of the case. The court found that the trial judge did not err in admitting this evidence as it was necessary to understand the context of the alleged offences. Furthermore, the court assessed the sufficiency of the evidence to uphold the conviction. It concluded that the evidence was compelling and sufficient to prove the charges beyond reasonable doubt, thus affirming the conviction.

The Court of Appeal upheld the conviction and the sentence imposed by the lower court. The judges held that the trial judge had not erred in the admission of evidence and that the evidence was adequate to support the conviction. The appeal was dismissed, and the original conviction and sentence remained in place. This decision underscored the importance of correctly assessing the admissibility and sufficiency of evidence in sexual offence cases, particularly where the victims are vulnerable individuals such as children.

Orders