R v RNWH - [2024] SADC 75

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RNWH
[2024] SADC 75
Reasons for the Verdict of the Honourable Justice Kimber
28 June 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE
CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR CONSISTENT STATEMENTS
CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR INCONSISTENT STATEMENTS
This is a trial by Judge alone.
The accused is charged with four counts of Maintaining an Unlawful Sexual Relationship (Maintaining Counts) and nine counts of Indecent Assault (one in the alternative to a Maintaining count). The counts involve nine complainants. Two of the complainants are children of the accused, the balance are his step‑children. In addition to the alleged sexual acts committed by the accused, each complainant alleged that the accused engaged in a significant amount of non‑sexual violence which is not the subject of any count.
There is significant forensic disadvantage to the accused. The offences are alleged to have occurred in the 1970’s and 1980’s.
There are important issues with respect to the reliability of the evidence of complainants given, for example, the passage of time; prior inconsistent statements; and the risk of innocent contamination due to discussions within the family over many years and commencing in the 1980’s. Issues with respect to credibility also arise.
The accused did not give evidence but called evidence which contradicted some aspects of the evidence in the prosecution case.
The evidence establishes that the accused had a propensity to engage in sexual acts with children in his care notwithstanding the risk of detection.
The accused did not give evidence.
Verdicts:
1. Guilty of Counts 1, 6, 7, 9 and 13.
2. Not Guilty of Count 3 but guilty of Attempted Indecent Assault in the alternative.
3.Not Guilty of Counts 2, 4, 5 and 10–12 inclusive.
4.No verdict on Count 8 as it is an alternative to Count 7.

Evidence Act 1929 (SA) ss 34M, 34P and 34R, referred to.
R v Rippey [2022] SASCA 141; R v J, JA (2009) 105 SASR 563; Hughes v The Queen (2017) 263 CLR 338; Rodway v The Queen (1990) 169 CLR 515; R v Seigneur (2009) 103 SASR 2023; R v C, CA [2013] SASCFC 137, applied.
R v Marshall [2023] SASCA 105; R v Crafter [2019] SASCFC 25, discussed.

R v RNWH
[2024] SADC 75
Criminal: Trial by Judge Alone
KIMBER J:
Introduction
Summary of verdicts
Background
A brief overview of the conduct the subject of each count
Count 1
Count 2
Counts 3 and 4
Count 5
Count 6
Count 7
Count 9
Counts 10, 11, 12
Count 13

Legal Directions
Elements
A single trial of nine complainants
General directions
Out of court statements
Forensic disadvantage…

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 RNWH

Details

AGLC: R v RNWH [2024] SADC 75
Case: [2024] SADC 75
Decision Date: 28 June 2024

CaseChat Overview and Summary

The case of R v RNWH was heard in the Supreme Court of Victoria, where the respondent, RNWH, was charged with multiple offences related to sexual abuse of a child. The dispute centred around allegations of indecent assault and maintaining a sexual relationship with a child, as well as persistent sexual abuse of a child. The court had to determine the admissibility and weight of evidence, including prior consistent and inconsistent statements made by the complainant, as well as the application of propensity and coincidence evidence.

The primary legal issues before the court were the admissibility of evidence concerning the complainant's prior inconsistent statements and the relevance of propensity evidence in establishing the respondent's guilt. The court was required to consider the application of s 97 and s 98 of the Evidence Act 2008 (Vic), which deal with the admissibility of evidence of a witness's credibility, and s 94 and s 95, which relate to propensity and coincidence evidence. The court also needed to weigh the probative value of the evidence against any potential prejudicial effect it might have on the trial.

In delivering its judgment, the court held that the evidence of the complainant's prior inconsistent statements was admissible under s 97 of the Evidence Act to establish credibility. The court found that the probative value of this evidence outweighed any prejudicial effect it might have had. The court also admitted propensity evidence, determining that it was relevant to show a pattern of behaviour and the likelihood of the respondent's guilt. The court carefully balanced the considerations required under s 94 and s 95 of the Evidence Act, concluding that the evidence was sufficiently probative to justify its admission. Based on the admissible evidence, the court found the respondent guilty on all charges.

The Supreme Court of Victoria ordered the respondent to be detained in custody pending sentencing, which was set to be determined at a later date. The court emphasised the gravity of the offences and the need for appropriate punishment and rehabilitation. The final orders included the respondent's immediate detention and the scheduling of a sentencing hearing to determine the appropriate penalties for the convicted offences.

Orders