R v SK
[2012] ACTSC 163
•October 3, 2012
R v SK
[2012] ACTSC 163 (3 October 2012)
CRIMINAL LAW – Offences against the person - Incest – Sexual intercourse with person under the age of 16 years who was to his knowledge his lineal descendant - s 62(2) Crimes Act 1900 (ACT)
CRIMINAL LAW- Judge alone trial - Standard of proof – Prasad direction
EX TEMPORE JUDGMENT
No. SCC 386 of 2010
Judge: Higgins CJ
Supreme Court of the ACT
Date: 3 October 2012
IN THE SUPREME COURT OF THE )
) No. SCC 386 of 2010
AUSTRALIAN CAPITAL TERRITORY )
R
v
SK
ORDER
Judge: Higgins CJ
Date: 3 October 2012
Place: Canberra
THE COURT ORDERS THAT:
A verdict of not guilty is entered.
In this trial I fulfil the functions of both judge and jury. It falls to me to determine not only the legal questions involved but also any factual question involved. As in any criminal case, the accused bears no onus of proof. The prosecution must prove the accusation which it makes through the indictment to the criminal standard, which is beyond a reasonable doubt. It is contrasted with the civil standard in other cases, which is on the balance of probabilities. Beyond reasonable doubt means exactly what it says. It does not mean beyond any doubt, but it does mean beyond any doubt that might be regarded as reasonable.
To give an illustration of that, if there was a suggestion that the accused was innocent because of, for instance, a miracle, one might well say that is not a reasonable basis to posit a doubt upon, without saying that miracles are impossible. In other words, there must be a reason for any doubt which is entertained. Nevertheless, the prosecution bears the onus of establishing its case beyond any such doubt.
The accused has no burden to bear. He need establish nothing. While the prosecution has a burden of establishing a positive - namely, the guilt of the accused - the accused has no burden of proving anything. He does not have to prove, if it was not him, who was the father of the child, for example. All of that is beyond controversy.
Also beyond controversy are the elements of this offence, many of which are not in doubt. The relationship between the alleged victim and the accused is not in doubt. The age and paternity of the alleged victim is not in doubt. So in that sense the only issue that arises for decision is whether the accused engaged in sexual intercourse with that person, who is his daughter. And there is no doubt in my mind at least, and certainly it has not been suggested I should have a doubt, but that the complainant was, to his knowledge, his lineal descendant.
Therefore the issue is has the Crown proved beyond a reasonable doubt that SK engaged in sexual intercourse with the complainant? And that question at this stage implies that I cannot find the accused guilty at this point of that offence. I can only say whether, the prosecution having completed its case, there remains to my mind a reasonable doubt not dispelled by that evidence. If no such question arises it does not follow that the accused is guilty, but it follows that he is then called upon to say whether he further answers the charge or not. And that is to say, calls evidence or not. Indeed, to make submissions or not on that issue, although they have to some extent already been made. That is the nature of a Prasad direction. It is, however, something which I do need to give careful consideration to because the evidence here relies primarily, in order to support the proposition the prosecution advances, on the analysis and interpretation of DNA evidence.
Now, in a case uncomplicated by any genetic transposition disorder, it might seem fairly straightforward. And I suppose that is no doubt the way the prosecution saw it, and not unreasonably. It is no doubt the way those who investigated the case saw it, again not unreasonably. The question is whether, having regard to the evidence which has been given and now has been tested, that conclusion remains the only reasonable conclusion on the evidence so far.
The difficulty I have with it is very simply that I do not know with any degree of certainty what the effect of the genetic transposition is. I do not have a genetic profile of the complainant’s mother and I do not know what that would show. However, maybe that would show that if you compared that with her daughter there were some anomalies. It may not show that, I do not know. That is one of the difficulties which I have.
That an anomaly is possible does emerge from two sources. One is that of the accused himself, who gave what appeared to be a lucid explanation to the police, whether it was right or not we simply do not know. We have no evidence to evaluate that, but it is a hypothesis.
We also have Ms Keglovic. Again it is not a matter within her area of expertise as such, but she did acknowledge that it was possible that there could be some effect on the genetic code that is discovered by the DNA process of genetic transposition. Obviously she would not know precisely what it might be or how it would express itself, but you would think in those circumstances that the only way of determining that issue would be to ask a person who was skilled in the science of genetics to tell us whether the particular disorder from which the mother, daughter and foetus suffered would have any effect of that kind. Certainly the explanation the accused gave would not exclude that as a possibility and it is one which is reasonable to entertain as an hypothesis.
Now, what effect that would have, of course, one cannot be sure. One does not have to be, of course. The question is whether there is a doubt which remains about the matching of the accused and of the complainant with the foetus which was aborted. Now, some facts are undeniable. It is obvious that the complainant was pregnant. It is obvious that there was a foetus. It is obvious therefore that somebody in some fashion, be it by direct sexual intercourse, which is the most likely means, or otherwise which is less likely, started that pregnancy.
The question is: can you work out from those persons who were possible contributors that the only person who was a possible contributor is the accused, on the evidence so far? That question is a stark one that I have to face up to and answer. The answer I have to give at this stage is that I am not able to be satisfied of that to the requisite criminal standard because of the unknown effect of the genetic disorder.
Whether there is also a question, even if that doubt were resolved, about whether the only way forward was to find sexual intercourse, I do not think I need to address. And indeed I will not address it because, although it is a classic jury question, there is not much one can say about it at this point in time. It may be if some scenario were presented with some evidence to support it one might or not have a doubt about that. At this stage I simply do not address it because the doubt that I have identified is sufficient to require me to enter a verdict of not guilty.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 3 October 2012
Counsel for the prosecution: Ms Jones
Solicitor for the prosecution: Mr Webb
Counsel for the defence: Mr Gill
Solicitor for the defence: Ms Agius
Date of hearing: 3 October 2012
Date of judgment: 3 October 2012
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