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R v Richards

R v Richards

Case [2015] SADC 44 23 March 2015

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RICHARDS
[2015] SADC 44
Ruling of His Honour Judge Millsteed
23 March 2015
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER
Trial by judge alone - accused charged with three counts of aggravated communication for a prurient purpose contrary to s 63B(3)(b) of Criminal Law Consolidation Act 1935 - charges based on online communications made by accused to police undercover operative posing as a 13 year old girl - element of aggravation contained in s 5AA(1)(e) required that the accused knew that the alleged victim was under the age of 14 years at the time of the offence - submission of no case to answer in respect of each count on the basis that s 5AA(1)(e) required the alleged victim to be under 14 years of age - submission of no case upheld - whether in respect of each charged communication the accused had a case to answer in the alternative for the basic offence under s 63B(3)(b) - accused submitted that in the absence of such a statutory provision and in the absence of a specific alternative charge the accused could not be convicted of a basic offence - argument rejected - held that the basic offence was available as an alternative verdict under common law - observations as to whether alternative case to answer for offences of attempted aggravated communication for prurient purpose were available.
Criminal Law Consolidation Act 1935 s 63B(3)(b), referred to.
Queen v Barrie [2012] SASFC 124; May v O'Sullivan (1956) 92 CLR 654; R v Bilick (1984) 36 SASR 321; F, BV v Magistrates Court of South Australia (2013) 115 SASR 232; The Queen v Sumner; The Queen v Fitzgerald (2013) 117 SASR 271; Bropho v Western Australia (1990) 171 CLR 1; Coco v The Queen (1993-4) 179 CLR 427; Taikato v The Queen (1996) 186 CLR 454; Britten v Alpogut [1987] VR 929; R v Irwin (2006) 94 SASR 480, considered.

R v RICHARDS
[2015] SADC 44
INTRODUCTION

This is a trial by judge alone. The accused is charged with three counts of “aggravated making a child amenable to sexual activity”, contrary to s 63B(3)(b) of the Criminal Law Consolidation Act 1935 (CLCA). Except for the dates of the alleged offences, the three counts are expressed in identical terms:
Statement of Offence
Aggravated Making a Child Amenable to Sexual Activity.[1] (Section 63B(3)(b) of the Criminal Law Consolidation Act, 1935).
Particulars of offence
Stephen Christopher Richards on … at Burnside, made a communication for a prurient purpose with the intention of making a child under the prescribed age amenable to a sexual activity.
It is further alleged that Stephen Christopher Richards committed the offence knowing that the victim of the offence was under the age of 14 years at the time of the offence.
[1] The Statement of Offence is poorly drafted. The gravamen of the offence is…

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 Richards

Details

AGLC: R v Richards [2015] SADC 44
Case: [2015] SADC 44
Decision Date: 23 March 2015

CaseChat Overview and Summary

In the case of R v Richards, the accused was charged with three counts of aggravated communication for a prurient purpose, contrary to section 63B(3)(b) of the Criminal Law Consolidation Act 1935. The charges stemmed from online communications made by the accused to a police undercover operative posing as a 13-year-old girl. The element of aggravation under section 5AA(1)(e) required the accused to know that the alleged victim was under the age of 14 years at the time of the offence. The accused submitted a no case to answer in respect of each count, arguing that section 5AA(1)(e) required the alleged victim to be under 14 years of age. The submission was upheld, and the court considered whether the accused had a case to answer in respect of each charged communication for the basic offence under section 63B(3)(b).

The accused argued that in the absence of a statutory provision and a specific alternative charge, they could not be convicted of the basic offence. However, the court rejected this argument, holding that the basic offence was available as an alternative verdict under common law. The court also observed that alternative cases to answer for offences of attempted aggravated communication for a prurient purpose were available.

The court concluded that the accused had no case to answer in respect of each count of the aggravated communication offence, but the basic offence remained as an alternative verdict. The accused was found not guilty of the aggravated charges but was left open to conviction for the basic offence if the prosecution wished to pursue it further. This decision highlights the importance of the age of the alleged victim in determining the nature of the offence and the potential for alternative verdicts in criminal cases.

Orders