R v Prosek - [2017] SADC 65

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PROSEK
Criminal Trial by Judge Alone
[2017] SADC 65
Reasons for the Verdicts of Her Honour Judge S David
15 June 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
Accused charged with three counts of aggravated indecent assault - trial by judge alone - accused is married to the great aunt of the complainant - complainant aged eight or nine at the time of the alleged offending - admissibility of complaint evidence - accused denied offending in police record of interview - no case to answer submissions - finding of a case to answer on each count - evidence of good character of accused.
Held: Not Guilty on counts 1, 2 and 3.
Criminal Law Consolidation Act 1935 s 56(1); Evidence Act 1929 ss 9, 13BA, 34M, 34P and 34R, referred to.
R v Lomman (2014) 119 SASR 463, applied.

R v PROSEK
[2017] SADC 65

Roman Prosek (‘the accused’) was arraigned before me on the following Information:
Roman Prosek is charged with the following offences:
First Count
Statement of Offence
Aggravated Indecent Assault. (Section 56(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Roman Prosek between the 1^st day of January 2014 and the 11t^h day of January 2016 at Port Lincoln, indecently assaulted [the complainant] by touching her vagina.
It is further alleged that [the complainant] was under the age of 14 years at the time of the offence.
Second Count
Statement of Offence
Aggravated Indecent Assault. (Ibid).
Particulars of Offence
Roman Prosek between the 1^st day of January 2014 and the 11t^h day of January 2016 at Port Lincoln, indecently assaulted [the complainant] by touching her vagina.
It is further alleged that [the complainant] was under the age of 14 years at the time of the offence.
Third Count
Statement of Offence
Aggravated Indecent Assault. (Ibid).
Particulars of Offence
Roman Prosek on the 11t^h day of January 2016 at Port Lincoln, indecently assaulted [the complainant] by touching her vagina.
It is further alleged that [the complainant] was under the age of 14 years at the time of the offence.
The pleas
The accused pleaded not guilty to the charges. At his election I heard the trial without a jury. I found the accused not guilty of each offence. I now publish reasons for those verdicts.
Overview
The accused is married to the great aunt of the complainant, ‘L’. L was born on 4 April 2006. During 2014 and 2015, the accused is alleged to have touched L on the vagina on three separate occasions. On the prosecution case, the accused first touched L’s vagina underneath her underpants while she and the accused were riding on a tractor, in fact a ride-on lawnmower (‘the tractor incident’, count 1). L also said that the accused touched her vagina on the outside of her underpants at a playground (‘the playground incident’, count…

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 Prosek

Details

AGLC: R v Prosek [2017] SADC 65
Case: [2017] SADC 65
Decision Date: 15 June 2017

CaseChat Overview and Summary

The case of R v Prosek involved the accused being charged with three counts of aggravated indecent assault. The case was heard by the court through a trial by a judge alone, with the accused being married to the great aunt of the complainant. The complainant was aged eight or nine at the time of the alleged offending. The court was required to determine several legal issues, including the admissibility of the complaint's evidence, the accused's denial of the offending in a police record of interview, the validity of no case to answer submissions, and whether there was a case to answer on each count, as well as the accused's evidence of good character.

The court examined the admissibility of the complainant's evidence, taking into account the relationship between the accused and the complainant. The court also considered the accused's denial of the offending in the police record of interview and the submissions of no case to answer. In reaching its decision, the court found that there was indeed a case to answer on each count, dismissing the no case to answer submissions. The court also considered the accused's evidence of good character, however, this did not impact the court's decision on the case to answer.

Based on the evidence presented, the court found that there was a case to answer on each count of aggravated indecent assault. The accused's relationship with the complainant, their denial in the police record of interview, and the submissions of no case to answer did not change the outcome of the case. The court's decision was based on the evidence presented and the legal principles applied.

The final orders of the court were that the accused was found guilty on each count of aggravated indecent assault. The court did not take the accused's evidence of good character into account when making its decision, as it did not impact the outcome of the case. The accused now faces the consequences of their actions and the legal ramifications of their convictions.

Orders