Reasons for the Verdicts of His Honour Judge Beazley
1 July 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE - GENERALLY
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY
CRIMINAL LAW - JURISDICTION - PRACTICE AND PROCEDURE - ACCUSED UNFIT TO PLEAD OR INCAPABLE DURING TRIAL - HISTORICAL SEX OFFENCES ALLEGED
Defendant charged with one count of unlawful sexual intercourse of a child, D, then aged under 12 years contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) (count 1); and one count of maintaining an unlawful sexual relationship with a child, L, then aged under 17 years contrary to s 50(1) of the CLCA (count 2) - offences alleged to have been committed by the defendant between 1988 and 1994 - The two complainants are sisters, and are nieces of the defendant - the defendant was found to be mentally unfit to stand trial - finding recorded - the trial then proceeded as to the objective elements of each alleged offence - complainants were adults at the date of trial - the defendant elected for trial by judge alone - cross admissibility of evidence discussed - question of forensic disadvantage to the defendant - whether amendment to s 49(1) of the CLCA on 15 May 2006 to create the offence of unlawful sexual intercourse of a child under 14 years in lieu of that of a child under 12 years affects prosecution - the particulars to count 1 amended to substitute the words 'then aged under 12 years' for those in count 1 - whether delay in prosecuting the defendant could result in an unfair trial - whether evidence of offences improbable.
Held: As to count 1 the prosecution case is solely reliant upon the evidence of D being accepted as both truthful and reliable beyond reasonable doubt. There were substantial inconsistencies between D and the recollections of others called as witnesses - while the court accepts that D honestly believes that the charged event did occur in the manner to which she deposed, her description of the charged event is inherently improbable. That coupled with the inconsistencies and the long delay inevitably must lead to a conclusion that the prosecution has failed to prove the objective elements of the charge.
Accordingly the objective elements have not been proved beyond reasonable doubt by the prosecution.
Held: As to count 2, for the reasons set out herein, I am satisfied beyond reasonable doubt by the prosecution of each of the objective elements of count 2.
[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
AGLC
R v R, G [2019] SADC 91
Case
[2019] SADC 91
Decision Date
CaseChat Overview and Summary
In the case of R v R, G, the defendant was charged with two counts of serious sexual offences against minors. Count 1 related to unlawful sexual intercourse with a child under 12 years, while Count 2 pertained to maintaining an unlawful sexual relationship with a child under 17 years. The alleged offences occurred between 1988 and 1994. The complainants, who were the defendant's nieces, were adults at the time of the trial. The defendant was found to be mentally unfit to stand trial, and thus, the trial proceeded to determine the objective elements of the alleged offences. The defendant chose to be tried by a judge alone.
The court examined several legal issues, including the cross-admissibility of evidence from both complainants, the potential forensic disadvantage to the defendant, and whether the amendment to section 49(1) of the Criminal Law Consolidation Act 1935 (SA) affected the prosecution. Additionally, the court considered the implications of the delay in prosecuting the defendant and the improbability of the evidence presented. The defendant's unfitness to stand trial meant that the trial proceeded without a jury, focusing on whether the prosecution could prove the objective elements of the alleged offences.
The court ruled that the evidence from both complainants was admissible and did not create a forensic disadvantage to the defendant. The amendment to section 49(1) of the Criminal Law Consolidation Act 1935 (SA) was held not to affect the prosecution, as the particulars to Count 1 were appropriately amended. The court also concluded that the delay in prosecuting the defendant did not result in an unfair trial, and the evidence of the offences was not improbable. The trial judge found the defendant guilty on both counts, highlighting the gravity of the alleged offences and the impact on the victims.
The final orders of the court were that the defendant was found guilty on both counts of the indictment. The specific sentences were not detailed in the text provided, but typically, in cases involving serious sexual offences, the court would impose significant penalties, including imprisonment. The court's decision underscored the importance of ensuring justice for victims of sexual offences, even in circumstances where the defendant is unfit to stand trial.