R v R, WD - [2005] SASC 191

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v R, WD
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Besanko and The Honourable Justice Sulan)
31 May 2005
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INCEST
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
Appeal against conviction – where the appellant was convicted of unlawful sexual intercourse contrary to s 49(5) of the Criminal Law Consolidation Act 1935 (CLCA) – where the victim was the appellant’s adopted daughter – whether trial Judge erred in finding that the appellant was the guardian of his adopted daughter for the purposes of s 49(5) – where the appellant was charged in the alternative with incest contrary to s 72 of the CLCA – where trial Judge held that there was no need to consider the alternative charge of incest – whether trial Judge erred in failing to consider the alternative charge of incest – appeal dismissed.
Criminal Law Consolidation Act 1935 ss 33A, 39, 49, 53, 72, 80; Juries Act 1927 s 7; Criminal Law Consolidation Amendment Act 1885 s 11; Criminal Law Amendment Act 1917 s 6; Criminal Law Consolidation Act 1981; Criminal Law Consolidation (Felonies and Misdemeanours) Amendment Act 1994; Infants Custody Act 1883 (SA); Guardianship of Infants Act 1887 (SA); Adoption of Children Act 1925 s 12; Adoption of Children Act 1967 ss 3, 30, 31; Adoption Act 1988 s 9; Criminal code (WA) s 190; Halsbury's Laws of England (1st ed) Vol 17 Part 7; Chambers on Infants pp 54-59; Simpson on the Law of Infants (4th ed) Part II Ch VII, Part III Ch X; Parliamentary Debates, 7th July 1885 P 188, referred to.
R v Adams (1935) 53 CLR 563; Ratcliff's Case (1592) 3 Co Rep 37a, 37b et seq; R v Thorp (1696) 87 ER 618; Carth 384; Mendes v Mendes (1747) 27 ER 910; 3 Atk 619; Rimington v Hartley (1880) 14 Ch D 630; In re A and B (Infants) [1897] 1 Ch 786; Youngman v Lawson [1981] 1 NSWLR 439; Burch v SA (1998) 71 SASR 12; Crowe v Graham (1968) 121 CLR 375; Reg v Campbell [1968] Tas SR 38; G and Another (1997) 91 A Crim R 590, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Guardian"

R v R, WD
[2005] SASC 191
Court of Criminal Appeal: Duggan, Besanko and Sulan JJ

DUGGAN J. I agree that the appeal should be dismissed for the reasons given by Besanko J.
BESANKO J: The appellant was charged on Information with the following offences:
1Unlawful sexual intercourse contrary to s 49(5) of the Criminal Law Consolidation Act 1935 (“CLCA”). The particulars…

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 R, WD

Details

AGLC: R v R, WD [2005] SASC 191
Case: [2005] SASC 191
Decision Date: 31 May 2005

CaseChat Overview and Summary

In the case of R v R, WD, the appellant, who had adopted KM as his child in 1967, was convicted of unlawful sexual intercourse contrary to s 49(5) of the Criminal Law Consolidation Act 1935 (CLCA) and incest contrary to s 72 of the CLCA. The appeal was against the conviction of unlawful sexual intercourse, with the primary issue being whether the trial Judge erred in finding that the appellant was the guardian of KM within the terms of s 49(5). The appellant also contended that the trial Judge erred in failing to consider the alternative charge of incest.

The court had to determine whether the appellant was indeed the guardian of KM for the purposes of s 49(5) of the CLCA, and if so, whether this was sufficient to sustain the conviction. The court also considered whether the trial Judge should have ruled on the alternative charge of incest. The court found that, at the time of the alleged offence, the appellant was in law KM’s parent and, as her father, he was her guardian within the terms of s 49(5). The court held that the appeal should be dismissed.

In conclusion, the court found that the appellant was indeed the guardian of KM and, therefore, the conviction under s 49(5) of the CLCA was upheld. The court dismissed the appeal, agreeing with the reasons provided by Besanko J.

Orders

Orders of the court

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Background

Background to the litigation

The appeal by the appellant is against the Judge’s finding of guilt in relation to the first charge, and the only issue in relation to that finding is whether the Judge erred in concluding that at the relevant time the appellant was the guardian of KM within the provisions of s 49(5) of the CLCA. In his notice of appeal the appellant also complained of the Judge’s failure to rule on the alternative charge of incest, although that complaint was not developed on the hearing of the appeal. Although the charge of incest is not before this Court, I will need to mention it again because of one of the submissions put by the appellant on the appeal.The Facts The complainant, KM, was born on 13th November 1966 and between May and August 1984 she was 17 years of age. On 23rd May 1967, and when the complainant was about six months of age, the appellant and his wife adopted KM as their child. A court order to that effect was made on that date. Neither the appellant nor his wife was KM’s natural parent. The appellant had consensual sexual intercourse with KM on a number of occasions between 1st May 1984 and 30th August 1984. The last act of sexual intercourse was the subject of the two charges and it resulted in KM becoming pregnant. A child was born on 22nd March 1985 and the appellant is that child’s natural father. Before dealing with the issues on appeal I mention that after the hearing of the appeal and without leave, the appellant’s solicitors sent further written submissions to the Court. They did not have leave to do that. It is unnecessary for me to decide how the Court should deal with those submissions because I have read them and I do not think they add anything to the oral and written submissions which were presented on the hearing of the appeal.Section 49(5) of the CLCA and the meaning of “guardian” Section 49 of the CLCA creates various offences of unlawful sexual intercourse. Section 49(5) is an exception to the general rule that the age of consent is 17 years. There is no definition of “guardian” in the CLCA. A section in similar terms to s 49(5) has been a part of the criminal law of this State since 1885. Section 11 of the Criminal Law Consolidation Amendment Act 1885 read as follows:Any person who, being the guardian, teacher or schoolmaster of any female under the age of eighteen years, unlawfully and carnally knows, or attempts to have unlawful and carnal knowledge of such female, shall be guilty of a misdemeanour, and, being convicted thereof, shall be liable to be imprisoned for any term not exceeding three years, with or without hard labor. By s 6 of the Criminal Law Amendment Act 1917 the penalty under s 11 was increased to imprisonment with hard labour for any term not exceeding seven years. Section 11 was re-enacted as s 53 of the Criminal Law Consolidation Act 1935. Section 53 was amended by the Criminal Law (Sexual Offences) Amendment Act 1975 by replacing the words “or schoolmaster” with the words “schoolmaster or schoolmistress” and by replacing the word “female” with the word “person”. By the Criminal Law Consolidation Act Amendment Act 1976 the offence in s 53 was replaced by the offence in s 49(5) which at that time was in the following terms:A person who, being the guardian, schoolmaster, schoolmistress, or teacher of a person under the age of eighteen years who has sexual intercourse, or attempts to have sexual intercourse, with that person shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding seven years.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DUGGAN J

In my opinion, in May 1967 and thereafter, up to and including the time the alleged offence was committed, the appellant was in law KM’s parent and as her father in the eyes of the law he was her guardian within the terms of s 49(5) of the CLCA. I do not think that there is any ambiguity in the statutory provision which would call for the application of the principle identified earlier.Conclusion In my opinion, the appeal should be dismissed. SULAN J: I agree that the appeal should be dismissed. I agree with the reasons of Besanko J.

Ratio Decidendi

Legal Principle Established

Established by: DUGGAN J

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