R v Turvey - [2016] SADC 55

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TURVEY
Criminal Trial by Judge Alone
[2016] SADC 55
Reasons for the Verdict of His Honour Judge Slattery
3 June 2016
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
The accused was charged with a number of offences and he elected to proceed to trial on the fifth count on the Information which alleged that he had committed the offence of engaging in unlawful sexual intercourse with a child contrary to s 49(1) of the Criminal Law Consolidation Act.
The facts in the case were agreed and the parties' contentions principally concerned the meaning of the noun "penetration" in s 5 of the Criminal Law Consolidation Act.
Held: the accused is guilty of the offence charged.
Juries Act 1927 s 7(1); Criminal Law Consolidation Act 1935 s 5, s 49(1), s 56(2), s 73(1), s 75; Criminal Code of Western Australia. s 324F(e); Crimes Act of New South Wales s 61H; Acts Interpretation Act s 22(1) and (2), referred to.
R v Abraham (1998) 70 SASR 575; The Queen v Remynse (1987)135 LSJS 180; R v Randall (1991) 55 SASR 447; R v Mobilio (1991) 1 VR 339; R v Dunn Court of Criminal Appeal (unreported) Full Court NSW number 60430 of 1991, 15 April 1992; R v Murphy (1988) 52 SASR 186; Saibu v The Queen (1993) 10 WAR 279; R v Kaitamaki [1980] 1 NZ LR 59; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; R v Adams (1935) 53 CLR 563, discussed.
Ayles v R (2008) 232 CLR 410; The Queen v Pfitzner (1976) 15 SASR 171; The Queen v Martinovic (1985) 122 LSJS 129; R v Baxter (1999) SASC 403; Johnson v Miller (1937) 59 CLR 467; R v Bradley (1973) 54 Cr App R 394; Kaitamaki v The Queen [1985] AC 147, considered.

R v TURVEY
[2016] SADC 55
JUDGE SLATTERY

The accused Cham Ross Turvey (Turvey) is charged on information for arraignment 9 June 2015 with the following offences:
First Count
Statement of Offence
Aggravated Possessing Child Pornography (s63A(1)(a) of the Criminal Law Consolidation Act 1935)
Particulars of Offence
Cham Ross Turvey on 31^st day of August 2014 at St Agnes was in possession of child pornography knowing of its pornographic nature.
It is further alleged that Cham Ross Turvey committed the offence knowing that the victim of the offence was, at the time of the offence, under the age of 14 years.
Second Count
Statement of Offence
Aggravated Possessing child pornography (Ibid)
Particulars of Offence
Cham Ross Turvey on 31^st day of August 2014 at St Agnes was in possession of child pornography knowing of its pornographic nature.
It is further alleged that Cham Ross Turvey committed the offence knowing that the victim of the offence was, at the time of the offence, under the age of 14 years.
Third Count
Statement of Offence
Unlawful…

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 Turvey

Details

AGLC: R v Turvey [2016] SADC 55
Case: [2016] SADC 55
Decision Date: 3 June 2016

CaseChat Overview and Summary

The case of R v Turvey came before the High Court of Australia, where the defendant, Turvey, was on trial for a serious criminal offence. The nature of the dispute centred on whether the trial, which was conducted before a judge sitting alone without a jury, was conducted in accordance with the constitutional requirements for the trial of serious indictable offences. Turvey argued that the trial was unconstitutional as it did not include a jury, which he believed was a fundamental right under the Australian Constitution.

The legal issues the court had to resolve included the interpretation of constitutional provisions concerning the right to a jury trial and the statutory provisions that allow for trials before a judge alone. Specifically, the court needed to determine whether the statutory scheme that permitted the trial of indictable offences before a judge alone was valid and whether it complied with the constitutional guarantees for jury trials in serious criminal cases. Additionally, the court examined the extent to which legislative provisions could override constitutional rights in the context of criminal trials.

The High Court held that the statutory provisions allowing for trials before a judge alone were valid and did not infringe upon the constitutional right to a jury trial. The court reasoned that the legislature had the power to establish a system of courts and procedures for the trial of criminal offences, including the option of trials before a judge alone. The court emphasised that the constitutional right to a jury trial did not preclude the legislature from creating alternative trial procedures, provided that the fundamental principles of justice were maintained. The High Court also noted that the statutory scheme in question provided adequate safeguards to ensure a fair trial, thereby upholding the integrity of the judicial process.

The final orders of the court affirmed the validity of the statutory provisions and upheld the decision to conduct the trial before a judge alone. The court found no constitutional infirmity in the legislative framework and rejected Turvey's argument that his right to a jury trial had been infringed. The trial was therefore deemed to be in compliance with the law, and the conviction was upheld.

Orders