R v Swa No. DCCRM-03-565 - [2004] SADC 35

R v SWA
[2004] SADC 35
CHIEF JUDGE WORTHINGTON

The accused is charged with persistent sexual abuse of a child contrary to s74(1) of the Criminal Law Consolidation Act 1935. It is alleged that between 1 January 1995 and 31 December 1999, at St Agnes and other places, he engaged in persistent sexual abuse of D, his stepson, then aged between 5 and 9 years. It is alleged in the information that the relevant conduct included sexual intercourse with D by inserting his penis into D’s anus and mouth, and indecently assaulting D. It is alleged also that there are at least three separate incidents falling on separate days, in which the accused committed a sexual offence against D. As required by s74(10) the Director of Public Prosecutions has consented to the prosecution. The accused has pleaded not guilty and elected to be tried by judge alone.
As relevant to the trial s74 reads as follows:
74(1)     A person may be charged with and convicted of the offence of persistent sexual abuse of a child.
(2)     Persistent sexual abuse of a child consists of a course of conduct involving the commission of a sexual offence against a child on at least three separate occasions (whether the offence is of the same nature on each occasion or differs from occasion to occasion).
(3)     A person does not however commit the offence of persistent sexual abuse of a child unless the occasions on which a sexual offence is committed against the child fall on at least three days.
(4)     A charge of persistent sexual abuse of a child -
(a)     must specify with reasonable particularity when the course of conduct alleged against the defendant began and when it ended; and
(b)     must describe the general nature of the conduct alleged against the defendant and the nature of the sexual offences alleged to have been committed in the course of that conduct,
but the charge need not state the dates on which the sexual offences were committed, the order in which the offences were committed, or differentiate the circumstances of commission of each offence.
(5)     Before a jury returns a verdict that a defendant is guilty of persistent sexual abuse of a child -
(a)the jury must be satisfied beyond reasonable doubt that the evidence establishes at least three separate incidents, falling on separate days, between the time when the course of conduct is alleged to have begun and when it is alleged to have ended in which the defendant committed a sexual offence against the child; and
(b)the jury must be agreed on the material facts of three such incidents in which the defendant committed a sexual offence of a nature described in the charge (although they need not be agreed about the dates of the incidents, or the order in which they occurred).
(6)     The judge must warn a jury, before it retires to consider its verdict on a charge of persistent sexual abuse of a child, of the requirements of…

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 Swa No. DCCRM-03-565

Details

AGLC: R v Swa No. DCCRM-03-565 [2004] SADC 35
Case: [2004] SADC 35
Decision Date: 27 February 2004

CaseChat Overview and Summary

In the matter of R v SWA, the defendant is charged with persistent sexual abuse of a child, contrary to s 74(1) of the Criminal Law Consolidation Act 1935. The prosecution alleges that the defendant engaged in persistent sexual abuse of his stepson, D, between 1 January 1995 and 31 December 1999. The alleged abuse includes sexual intercourse by inserting the defendant's penis into D's anus and mouth, as well as indecent assault. The Director of Public Prosecutions has consented to the prosecution, and the defendant has pleaded not guilty, electing to be tried by a judge alone.

The primary legal issue the court had to decide was whether the prosecution had proven beyond reasonable doubt that the defendant committed at least three separate incidents of sexual abuse against D on separate days, as required by s 74(5) of the Act. The court had to assess the credibility and reliability of D's testimony, which was the primary evidence presented by the prosecution. The court also had to consider whether a Longman warning was necessary due to the significant delay in D reporting the abuse and the potential for forensic disadvantage to the defendant.

The court found that D's testimony contained inconsistencies and shortcomings that undermined its reliability. These issues included discrepancies in D's account of the number of incidents in Melbourne, his ambiguous responses regarding the number of incidents at Seaton, and his failure to mention fellatio during his initial police interview. Additionally, D's prevarication about the defendant's employment and his inconsistent statements about what was said after an incident at Seaton raised concerns about the reliability of his testimony. The court concluded that D's evidence did not withstand the necessary level of scrutiny, and thus it would be dangerous to base a finding of guilt on it.

Therefore, the prosecution failed to prove its case, and the defendant was found not guilty. The court directed that a verdict of acquittal be entered.

Orders