R v PW - [2009] NTSC 8

R v PW [2009] NTSC 08

PARTIES: THE QUEEN
v
PW
TITLE OF COURT: SUPREME COURT OF THE
NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO: 20713041
DELIVERED: 23 MARCH 2009
HEARING DATES: 16 MARCH 2009
JUDGMENT OF: MILDREN J
CATCHWORDS:
CRIMINAL LAW – sexual offences – maintaining sexual relationship with child under 16 – whether s 131A(2) of the Criminal Code requires 3 or more offences against the same provision of the Code
EVIDENCE – admissibility – recent complaint – whether evidence admissible
EVIDENCE – admissibility – Evidence Act s 26E – whether evidence admissible as evidence of facts in issue
Statutes:
Evidence Act (NT), s 26E, s 26F, s 26F(1), s 26L
Criminal Code (NT), s 131A, s 131A(1), s 131A(2), s 131A(4), s 131A(5)
Criminal Code (Qld), s 229B
Crimes Act (Vic), s 47A, s 47A (2A)
References:
Cross on Evidence, 4 th Aust ed, Butterworths, Sydney, 1991- (loose-leaf
edition)
Citations:
Applied:
R v Manager [2006] NTSC 85
Followed:
R v Wojtowicz (2005) 148 NTR 24
Referred to:
GJB (2002) 129 A Crim R 479
KBT v The Queen (1996-1997) 191 CLR 417
Macfie [2000] VSCA 173
R v Thompson (1996) 90 A Crim R 416
S (1989) 168 CLR 266; 45 A Crim R 221
REPRESENTATION:
Counsel:

Plaintiff: M Stoddart and B Wild
Defendant: P Maley
Solicitors:

Plaintiff: Office of the Director of Public
Prosecutions
Defendant: Peter Maley Solicitors
Judgment category classification: B

Number of pages: 12
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
R v PW [2009] NTSC 08

No. 20713041

BETWEEN:
THE QUEEN
Plaintiff

AND:
PW
Defendant

CORAM: MILDREN J
REASONS FOR RULINGS
(Delivered 23 March 2009)

The accused is charged with two counts of indecently dealing with his

stepdaughter, a child under the age of 16; one count of committing an act of
gross indecency without her consent; and two counts of having had sexual
intercourse without her consent. The offences are said to have taken place
between 24 April 2005 and 24 April 2007 at Alice Springs and at Palmerston
in the Northern Territory. There is also a sixth count which is based on
s 131A(2) of the Criminal Code, namely that:
“Between on or about 24 April 2005 and on or about 24 April 2007 at Alice Springs and Palmerston in the Northern Territory [the accused] maintained a relationship of a sexual nature with MJC, a child under the age of 16 years.”

At the commencement of trial a voir dire was conducted pursuant to s 26L of

the Evidence Act concerning the admissibility of the evidence of three

witnesses. It was submitted by counsel for the prosecution that the evidence
of the witness JT was admissible as evidence of recent complaint and also
was admissible pursuant to s 26E of the Evidence Act as evidence of the
facts in issue. In relation to the witness AM and the witness HM, counsel for
the Crown did not submit that the…

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 PW

Details

AGLC: R v PW [2009] NTSC 8
Case: [2009] NTSC 8
Decision Date: 23/03/2009

CaseChat Overview and Summary

The case of R v PW, heard by Mildren J in the Supreme Court of the Northern Territory, involved the accused, PW, charged with multiple counts of sexual offences against his stepdaughter, including indecent dealing, gross indecency, and sexual intercourse without consent. The prosecution also sought to charge PW under s 131A(2) of the Criminal Code for maintaining a sexual relationship with a child under 16. The admissibility of certain evidence, including statements made by the complainant to other witnesses, was contested, and the court had to determine whether the evidence met the criteria for admissibility under the Evidence Act. Furthermore, the court needed to decide whether s 131A(2) required the prosecution to prove three or more offences against the same provision of the Criminal Code.

Mildren J ruled that the evidence of the complainant's friend, JT, was admissible as recent complaint evidence, despite discrepancies in the accounts given by JT and the complainant. The court found that the complainant's stepfather status provided a reasonable basis for her reluctance to complain. However, the evidence was not deemed admissible under s 26E of the Evidence Act as it lacked sufficient detail and probative value. Evidence from another friend, AM, was inadmissible as it was secondary evidence of text messages that could not be substantiated due to police oversight. Conversely, the evidence from HM was considered sufficiently probative, as it related specifically to an incident and contained some detail.

Regarding the charge under s 131A(2), Mildren J concluded that the prosecution need not prove that the three or more offences were against the same provision of the Criminal Code, but rather that they were offences of a sexual nature. This interpretation was supported by the language of s 131A(4) and s 131A(5), which refer to the severity of the offence committed during the relationship. Consequently, count 6 was left to the jury.

The court's final orders included the admission of certain evidence under specific conditions and the decision to leave the charge under s 131A(2) to the jury, subject to the prosecution proving the necessary elements of the offence.

Orders