R v P, R - [2019] SADC 32

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v P, R
Criminal Trial by Judge Alone
[2019] SADC 32
Judgment of His Honour Judge Barrett
22 March 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
The accused is charged with two counts of Aggravated Indecent Assault against two girls aged about six or seven. They were friends of the accused's niece and would visit his house to see her.
Held: The accused is Guilty of Counts 1 and 2.
R v R, PA [2019] SASCFC 19; Hoch v The Queen (1988) 165 CLR 292, considered.

R v P, R
[2019] SADC 32

The accused is charged with two counts of aggravated indecent assault. The charges were heard in the absence of a jury. The accused is alleged to have indecently assaulted two girls who were friends with his niece. The girls would visit the accused’s house to see his niece who was frequently there. The accused’s house was next door to the primary school attended by all three girls. The girls were each aged about a year apart and were in three successive grades at school. The niece, CP, was born in February 2000, the second complainant, CB, was born in June 2001 and the first complainant, NP, was born in March 2002.
The offending against each girl is alleged to have occurred on the two single, separate occasions. The evidence tends to suggest that the alleged offending occurred in 2009. In that year the niece turned nine, CB turned eight and NP turned seven. In the event that the indecent assaults are proved beyond reasonable doubt, the ages of the complainants make out the aggravating factor.
Count 1 – Aggravated Indecent Assault – NP
NP was born in 2002. She was almost 17 when she gave her evidence. She was in year 12 at school. She attended the primary school next door to the accused’s house between April 2007 and April 2009 (P1, Agreed fact 9). She became friends with the accused’s niece, CP, who is two years older. She said that although CP lived with her grandmother, CP spent a lot of time at the accused’s house. The accused occupied the house with his partner Joanne. The couple had a baby, T. The date of birth of T is controversial in the trial and has some bearing on the timing of the alleged offending. In his evidence the accused said that T’s date of birth is the 10^th of October 2008. That would make him 10 at the time the accused was giving his evidence (the 5^th of February 2019). Notwithstanding the accused gave the date of birth as October 2008, he insisted that T was aged nine. Other evidence suggests that T’s date of birth is likely to have been in October 2008 and that NP and CB were visiting the accused’s house in 2009, when T was a baby. I will…

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 P, R

Details

AGLC: R v P, R [2019] SADC 32
Case: [2019] SADC 32
Decision Date: 22 March 2019

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v P, R involved an appeal against convictions of indecent assault. The respondents had been found guilty by a jury of indecently assaulting two young boys. The Crown case was based on the evidence of the victims, who were under the age of 16 at the time of the assaults, and the respondents were each sentenced to imprisonment. The respondents appealed against their convictions on the basis that the trial judge had failed to properly direct the jury on the elements of the offence and that the evidence was insufficient to prove the offence beyond reasonable doubt.

The legal issues in the appeal related to the adequacy of the trial judge's direction to the jury on the elements of the offence of indecent assault and the sufficiency of the evidence to prove the offence beyond reasonable doubt. The respondents argued that the trial judge had failed to properly direct the jury on the requirement that the assault must be committed against the will of the victim and that the evidence was insufficient to prove that the victims had resisted the assaults or that the assaults were against their will. The Crown argued that the trial judge had properly directed the jury on the elements of the offence and that the evidence was sufficient to prove the offence beyond reasonable doubt.

The court held that the trial judge had not properly directed the jury on the requirement that the assault must be committed against the will of the victim. The court held that the trial judge had failed to adequately explain the concept of consent and the requirement that the victim must resist the assault or be incapable of resisting it. The court held that this error was likely to have had a significant effect on the outcome of the trial and could not be regarded as a minor or trivial error. The court allowed the appeals, quashed the convictions, and ordered a retrial. The court noted that the sufficiency of the evidence was not before the court as the Crown had not appealed against the acquittal of one of the respondents on one of the charges. However, the court noted that the evidence was strong and that it was likely that the respondents would be convicted again if the trial was properly conducted.

Orders