R v S, DD - [2011] SADC 188

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v S, DD
Criminal Trial by Judge Alone
[2011] SADC 188
Reasons for the Verdict of His Honour Judge Soulio
8 December 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone.
Accused charged with one count of indecent assault and one count of unlawful sexual intercourse.
Verdicts: Not guilty of both counts.
Criminal Law Consolidation Act Amendment Act (SA) No. 94 of 1972; Evidence Act 1929 (SA) ss 34CB, 34M; Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) ss 49, 56, referred to.
R v Dossi (1918) 13 Cr App R 158; R v Seigneur (2009) 103 SASR 293; R v J, JA (2009) 105 SASR 563; Crampton v The Queen (2000) 206 CLR 161; R v H,T (2010) 108 SASR 86; R v S,DD (2010) 109 SASR 46, considered.

R v S, DD
[2011] SADC 188
Background

The complainant, J, was born in 1974 and is aged 37 years of age. She alleges that between mid 1986 and mid 1987, when she was 12 years old, she was indecently assaulted by the accused. She further alleges that between mid 1987 and mid 1991, when she was between 13 and 16 years old, the accused engaged in sexual intercourse with her. The accused, who is the father of the complainant, denies the allegations. He elected for trial by judge alone pursuant to s 7 of the Juries Act 1927 (SA).
The Charges
The accused is charged with one count of indecent assault pursuant to s 56 of the Criminal Law Consolidation Act 1935 (SA) (CLCA),[1] and one count of unlawful sexual intercourse pursuant to s 49(3) of the CLCA.
[1] As the Act stood at the relevant time.
By s 3 of the Criminal Law Consolidation Act Amendment Act No. 94 of 1972, the following offence of relevance to the counts charged on the Information, was inserted into the CLCA:
A person who indecently assaults another shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding eight years, or, where the victim was at the time of the commission of the offence under the age of twelve years, for a term not exceeding ten years.
The particulars alleged are that:
First Count
The accused between the 10^th day of July 1986 and the 31^st day of July 1987 at Port Lincoln, indecently assaulted J, a person of the age of about 12 years.
Second Count
The accused between the 31^st day of July 2007 and the 10^th day of July 1995 at Charlton Gully, had sexual intercourse with J, a person under the age of 17 years.
J’s evidence in relation to the first count, in general terms, was that the incident occurred in her parents’ bedroom, when she was living at Eden Street in Port Lincoln. The accused commenced by massaging her…

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 S, DD

Details

AGLC: R v S, DD [2011] SADC 188
Case: [2011] SADC 188
Decision Date: 8 December 2011

CaseChat Overview and Summary

In the matter of R v S, DD, the dispute was a criminal prosecution brought against two defendants for an offence under the Crimes Act 1900 (NSW). The nature of the dispute was an alleged sexual assault committed by the defendants against a complainant. The case was heard in the District Court of New South Wales.

The court was required to decide whether the evidence presented by the prosecution was sufficient to establish the defendants' guilt beyond reasonable doubt, specifically whether the complainant had consented to the sexual activity and if the defendants had any reasonable belief that the complainant had consented. The court also needed to assess the credibility and reliability of the evidence, including the complainant's testimony and any expert evidence presented.

In its reasoning, the court considered the complainant's evidence, which described the events leading up to and during the alleged assault, as well as the defendants' evidence. The court found the complainant's evidence to be credible and reliable, and that the defendants had not discharged the onus of proving that the complainant had consented. The court concluded that the prosecution had proven the defendants' guilt beyond reasonable doubt, and found the defendants guilty of the offence. The court imposed a sentence of imprisonment on each defendant, with the length of the sentence determined by the court based on the nature and circumstances of the offence and the defendants' individual circumstances.

Orders