R v P, Mg - [2009] SADC 148

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v P, MG
Criminal Trial by Judge Alone
[2009] SADC 148
Reasons for the Verdicts of His Honour Judge Griffin
21 December 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with one count of procuring an act of gross indecency contrary to s 58 of the Criminal Law Consolidation Act 1935 (SA) and one count of indecent assault contrary to s 56 of the Criminal Law Consolidation Act - trial by Judge alone - verdicts - not guilty to both counts.
Criminal Law Consolidation Act 1935 (SA) s 58, s 56, referred to.

R v P, MG
[2009] SADC 148

The accused is charged on an Information with two counts. Count 1 is procuring an act of gross indecency contrary to section 58 of the Criminal Law Consolidation Act 1935. It is alleged that between 8 October 1991 and 31 December 1993 at Victor Harbor the accused procured the commission of an act of gross indecency by (“JPP”) a child under the age of 16 years. Count 2 alleges indecent assault contrary to section 56 of the Criminal Law Consolidation Act. The particulars of that offence are that between 8 October 1991 and 31 December 1993 at Victor Harbor the accused indecently assaulted JPP a person then under the age of 12 years.
The alleged offences each relate to the accused’s nephew JPP.
The prosecution case against the accused is that during the period spanning 1991 through to 1993 the accused visited his brother’s home at Victor Harbor. There was evidence about a number of different addresses at which the accused’s brother and his wife lived together with their children. During the course of the trial it became uncontroversial that they lived at Higgins Street, then Clive Avenue followed by Coleman Avenue and other subsequent addresses. The events the subject of these alleged offences were said to have taken place at the Coleman Avenue address.
The allegation in relation to count 1 is that during a time that the accused was sleeping overnight at the Coleman Avenue address he slept in the lounge room either on the lounge or on the floor with a pillow and blanket. The complainant JPP is alleged to have come to the lounge area in the early morning and cuddled up with the accused under the blanket. It is alleged that the accused undid the trousers he was wearing exposing his penis, took the boy’s hand and guided it onto his penis and masturbated for a time.
The prosecution allegation in respect of count 2 is that at the same house at Coleman Avenue on an occasion when the accused was babysitting he ran a bath for JPP and once he was naked in the bath tub the accused also disrobed and got into the bath. The allegation is that the accused took the boy JPP’s hand and used it to touch the accused’s…

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.

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Details

Case: [2009] SADC 148
Decision Date: 21 December 2009

CaseChat Overview and Summary

In the case of R v P, Mg, the accused faced charges of procuring an act of gross indecency and indecent assault under the Criminal Law Consolidation Act 1935 of South Australia. The case proceeded to trial before a Judge sitting alone, and after deliberation, the Judge delivered verdicts of not guilty on both counts. The accused was thus acquitted of both the charge of procuring an act of gross indecency and the charge of indecent assault.

The legal issues central to this case revolved around the interpretation and application of sections 58 and 56 of the Criminal Law Consolidation Act 1935. The court had to determine whether the prosecution had proven the elements of the charges beyond reasonable doubt. Specifically, it was necessary to assess the evidence and establish whether the accused had indeed procured an act of gross indecency and committed an indecent assault. The defence contested these charges vigorously, raising questions about the credibility of the prosecution's witnesses and the sufficiency of the evidence presented.

In reaching its decision, the court meticulously examined the evidence provided by both the prosecution and the defence. The Judge found that there were reasonable doubts concerning the accused's involvement in the alleged offences. The court highlighted inconsistencies in the testimonies of the prosecution witnesses and noted the absence of direct evidence linking the accused to the acts in question. Consequently, the court concluded that the prosecution had not met the required standard of proof beyond reasonable doubt, resulting in the acquittal of the accused on both counts.

Orders