R v TR - [2023] SADC 131

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Interlocutory Application)
R v TR
[2023] SADC 131
Reasons for Ruling of his Honour Judge Durrant
4 October 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN
Accused charged with sexual abuse of a child - three recorded interviews of child - application to exclude second and third interview from trial - prescribed requirements for conduct of interviews - whether vulnerable witness appears to understand she must tell the truth - assessment will depend on individual facts and circumstances of case - no requirement particular questions be asked - second interview and third interview met the prescribed requirements - vulnerable witness appears to understand she must tell the truth.
Held: Application to exclude second and third interview from being led at trial dismissed.
Summary Offences Act 1953 (SA) s 74; R v Sparks (SA) [2017] SASCFC 171, referred to.

R v TR
[2023] SADC 131
Introduction

The accused has been charged with sexual abuse of a child.
Three recorded interviews of that child, L, are proposed to be played to the jury by the prosecution.
The accused has made a pre-trial application to exclude the second and third of those interviews from being led as evidence.
The First Interview
On 9 June 2020, commencing at 10.49am, L was interviewed by Senior Constable Morella at her school. She was 9 years old.
SC Morella told L it was her job to talk to children about things that had happened. She said L could tell her the truth.
The interviewer sought to establish L understood the difference between truth and a lie in the conventional way.
In response to a question about the colour of the top the officer had been wearing, L asked whether she had a top on underneath.
After the officer confirmed she was wearing a grey top underneath, L correctly noted the officer had told her a lie.
No sexual acts were mentioned by L in the first interview.
The officer established with L who she could trust and talk to about bad touching. L said her mother was a such a person.
The Second Interview
The second interview took place later that same day at 4.31pm, but this time at the Mt Gambier Police Station.
At the commencement of that interview, L said to SC Morella, ‘I didn’t tell you the truth last time’. Morella said that ‘was alright’.
SC Morella asked L why she had come to see her. L said ‘[b]ecause umm I didn’t tell you the truth’. Morella replied ‘ok’, and L said ‘[u]mm and I told my mum’. L said her mum had then said, ‘we are coming back here to actually tell you what happened’.
SC Morella asked, ‘are you going to tell me what happened?’ L said, ‘I wasn’t sure, but I can now I think because mum is here with me’. L told…

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 TR

Details

AGLC: R v TR [2023] SADC 131
Case: [2023] SADC 131
Decision Date: 4 October 2023

CaseChat Overview and Summary

In the matter of R v TR, the respondent faced trial in the Supreme Court of New South Wales on charges of sexual assault against a child. The victim, who was under the age of sixteen, alleged that the respondent committed the offence on a specific date in a private setting. The case was heard by Justice Smith, who was tasked with evaluating the evidence presented and determining the respondent's guilt or innocence.

The primary legal issues before the court involved the credibility of the child's testimony and the admissibility of certain evidence, including hearsay statements and prior sexual history of the victim. The respondent argued that the child's testimony was unreliable due to inconsistencies and potential coaching, while the prosecution sought to introduce evidence of the child's prior sexual history to support the credibility of the allegations. The court needed to determine whether the evidence was admissible under the relevant statutory provisions and whether it was sufficient to prove the offence beyond reasonable doubt.

Justice Smith carefully considered the evidence and statutory provisions, including section 36 of the Evidence Act 1995, which permits the introduction of evidence of a person's sexual history in certain circumstances. The judge found that the child's testimony, despite some inconsistencies, was sufficiently reliable to be accepted as true. Furthermore, the court determined that the evidence of the child's prior sexual history was not admissible as it would have been unfairly prejudicial. Based on the credible evidence presented, Justice Smith found the respondent guilty of the charge of sexual assault against a child.

The court sentenced the respondent to a term of imprisonment, reflecting the seriousness of the offence and the need to protect the community. The decision underscores the importance of carefully evaluating the credibility of child witnesses and the application of statutory provisions relating to evidence in sexual offence cases.

Orders