Reasons for the Verdict of His Honour Judge Millsteed
20 January 2016
CRIMINAL LAW
Trial by judge alone - accused charged with three counts of aggravated making a communication for a prurient purpose with the intention of making a child (a person under 17 years of age) amenable to sexual activity contrary to s 63B(3)(b) of the Criminal Law Consolidation Act 1935 (CLCA) - each offence alleged to be aggravated by reason of the accused knowing that the alleged victim was under 14 years of age (s 5AA(1)(e) CLCA) - charges based on internet chat room text messages sent by accused to a police officer pretending to be a 13 year old girl - accused requested complainant to appear on webcam wearing only her panties (count 1) and to expose her vagina (count 2) - while masturbating accused talked to the complainant about his penis slipping into her vagina - following the completion of prosecution case held that accused had no case to answer on each of the aggravated offences because the complainant was not in fact a child but had a case to answer in relation to each of the basic offences - rejection of defence submission that trial judge was obliged to immediately enter verdicts of acquittal with respect to aggravated offences and that such verdicts automatically negatived basic offences - trial proceeded on basis that the only offences in issue were the basic offences - accused gave evidence - no dispute that each communication was for a prurient purpose - accused contended that he did not intend to make a child amenable to sexual activity because he believed that the complainant was an adult female - held that accused made communications with requisite intent - defence contended that the intended activities alleged in counts 1 and 2 did not amount to sexual activities for purposes of s 63B(3)(b) - argument rejected - accused acquitted of charged offences alleged in counts 1 and 2 but in respect of each count found guilty of basic offence - in relation to count 3 prosecution contended that the accused intended to make the complainant amenable to sexual activity involving sexual intercourse - held that prosecution had failed to prove allegation - whether accused could be convicted of count 3 on basis of merely engaging in sexualised talk with complainant - accused found not guilty of both aggravated and basic offences alleged in count 3.
[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 Richards (No 2) [2016] SADC 2
Case
[2016] SADC 2
Decision Date
CaseChat Overview and Summary
Stephen Christopher Richards was tried before Judge Millsteed sitting without a jury on three counts of aggravated making a child amenable to sexual activity, contrary to s 63B(3)(b) of the Criminal Law Consolidation Act, 1935 (SA). The prosecution alleged that the accused had engaged in online communications with a police officer posing as a 13 year old girl with the intention of making her amenable to sexual activity. The accused elected to be tried by judge alone pursuant to s 7 of the Juries Act 1927 (SA). The accused was acquitted of the aggravated offences but found guilty of the basic offences in relation to counts 1 and 2. The accused was acquitted of the basic offence in relation to count 3. The judge held that the prosecution had not proved beyond reasonable doubt that the accused intended to make the complainant amenable to the sexual activity alleged in count 3. The judge held that the prosecution had not proved beyond reasonable doubt that the accused knew that the complainant was under 14 years of age. The judge held that the accused had intended to make the complainant amenable to sexual activity and that the activities alleged in counts 1 and 2 constituted sexual activity.