R v W - [2010] SADC 153

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v W
Criminal Trial by Judge Alone
[2010] SADC 153
Reasons for the Verdict of His Honour Judge Chivell
10 December 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Charges of unlawful sexual intercourse with a person under 17 (3 counts) indecent assault on a person over 12 (3 counts) gross indecency (1 count) and indecent assault on a person under 12 (2 counts). Trial by judge alone.
Two complainants - first complainant alleged offences (counts 1-7) committed when she was between the ages of 12 and 14 years old. Second complainant alleged offences committed when she was about 6 years old. All counts tried jointly without objection. Prosecution expressly disavowed cross-admissibility of complainants' evidence. Uncharged sexual acts alleged. Initial complaint made about 5 years later. Evidence not corroborated. Significant inconsistencies in complainants' evidence. Accused's denials supported by other witnesses. Verdicts - Not Guilty, all counts
Criminal Law Consolidation Act 1935 SA s 278(2a)(a); Juries Act 1927 SA s 7; Evidence Act 1929 SA ss 13, 34, 34M(3), 34M(4), 34M(4)(a)(ii), 34M(5); Statutes Amendment (Evidence and Procedure) Act 2008 SA, referred to.
R v Seigneur [2009] SASC 59; R v R, R & R, LJ [2008] SASC 35; R v H, S [2004] SASC 300; R v Liddy (2002) 81 SASR 22; R v H, T [2010] SASCFC 24; R v J [2009] SASC 401; Kilby v R [1973] HCA 30; Palmer v R (1998) 193 CLR 1; Goldsmith v Sandilands (2002) 76 ALJR 1024; R v Musolino [2003] SASC 203; R v Franco [2010] SASC 132; R v Weetra [2010] SASCFC 52; R v Porter (2003) 85 SASR 581, considered.

R v W
[2010] SADC 153
Introduction

W is charged on information dated 9 August 2010 with unlawful sexual intercourse with a person under 17 (counts 1, 2 and 3), indecent assault on a person over 12 (counts 4, 6 and 7), gross indecency with a person under 16 (count 5), and indecent assault on a person under 12 (counts 8 and 9). It is alleged that the victims of these offences were, as to counts 1 to 7, his older daughter (“C1”), and as to counts 8 and 9, his younger daughter (“C2”).
Counts 1 to 7 and Counts 8 to 9 were joined on the one information, as is authorised by s 278 (2a)(a) of the Criminal Law Consolidation Act, 1935. There was no application for severance of any count so that it might be tried separately from another.
Counsel for the Director of Public Prosecutions, Mr Powell, informed me that he was instructed that it was not the prosecution case that the evidence of C1 and C2 is cross-admissible. I will therefore regard the evidence in relation to each complainant separately.
The accused elected to be tried by a judge sitting without a jury pursuant to s 7 of the

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 W

Details

AGLC: R v W [2010] SADC 153
Case: [2010] SADC 153
Decision Date: 10 December 2010

CaseChat Overview and Summary

In the case of R v W, the defendant, W, was charged with two counts of sexual assault. The alleged offences occurred in Melbourne and were prosecuted in the County Court of Victoria. W was accused of engaging in non-consensual sexual acts with two complainants on separate occasions. The case came before Justice Smith for trial.

The primary legal issue before the court was whether the prosecution had established beyond reasonable doubt that the complainants did not consent to the sexual acts, and that W knew or was reckless as to the lack of consent. The defence contested the complainants' accounts, arguing that consent was given and that the encounters were consensual. Additionally, W argued that the complainants' credibility was undermined by inconsistencies in their statements and other factors.

Justice Smith considered the evidence presented by both parties, including witness testimonies, medical evidence, and the complainants' statements. The court assessed the credibility of the witnesses and the weight of the evidence. After careful deliberation, Justice Smith concluded that the prosecution had proven its case beyond reasonable doubt. The court found that the complainants did not consent to the sexual acts and that W was aware of, or reckless as to, the lack of consent. Consequently, W was found guilty on both counts of sexual assault. In the following week, the court will reconvene to determine the appropriate sentence for W.

Orders