R v W, AJ - [2019] SADC 172

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v W, AJ
Criminal Trial by Judge Alone
[2019] SADC 172
Reasons for the Verdict of His Honour Judge Cuthbertson
22 November 2019
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
Trial by Judge alone. Accused charged with one count of Maintaining an Unlawful Sexual Relationship with his step-daughter between 31 July 1977 and 31 July 1982. Evidence of first complaint made to mother in 1982. Whether evidence of first complaint admissible.
Held: Evidence of first complaint is admissible.
Verdict: Guilty of Count 1.
Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act 1935 s 50; Evidence Act 1929 ss 34CB, 34M, referred to.
Barry v Police (2009) 197 A Crim R 445; R v Landmeter [2015] SASCFC 3; R v J, JA (2009) 105 SASR 563; R v S, DD (2010) 109 SASR 46; R v Szenjnoga (1988) 199 LSJS 97; R v Maiolo (No 2) (2013) 117 SASR 1, considered.

R v W, AJ
[2019] SADC 172
Introduction

This verdict follows a trial by Judge alone; the accused having made an election pursuant to s 7 of the Juries Act 1927 (SA) for a trial by a judge sitting without a jury.
The accused is charged on an Information dated 21 September 2018 with the following offence:
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
W, AJ between the 31st day of July 1977 and the 31st day of July 1982 at Whyalla Norrie, Brompton and Elizabeth Field, maintained an unlawful sexual relationship with J M (formerly JSW) a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
a)putting his penis in her mouth on more than one occasion;
b)causing her to touch his penis on one or more occasions;
c)touching her vagina on one or more occasions; and
d)masturbating himself in her presence on one or more occasions.
Maintaining an Unlawful Sexual Relationship with a Child
The offence charged consists of four elements, each of which must be proved beyond reasonable doubt.[1]
1.   The accused must have been an adult at the time of the alleged offending. (The accused was born on 18 July 1955.[2])
2.   The complainant must have been under the age of 18 throughout the period in which the offending is alleged to have occurred. [3] (The complainant was born on 31 July 1974.)
3.   The accused engaged in two or more unlawful sexual acts with or towards the complainant within the charged period.
4.   A relationship existed between the accused and the complainant outside of the two or more unlawful sexual acts. (There was no dispute that, during the relevant period, the relationship that existed was also one of step-father/step-daughter.)
[1]

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, AJ

Details

AGLC: R v W, AJ [2019] SADC 172
Case: [2019] SADC 172
Decision Date: 22 November 2019

CaseChat Overview and Summary

The case of R v W, AJ involved a defendant charged with maintaining an unlawful relationship with a child under the age of sixteen. The complainant, a minor, had made allegations of sexual abuse against the defendant. The case was heard in the County Court of Victoria, where the defendant faced potential conviction on serious criminal charges. The primary focus of the case was the admissibility of the complainant's statements and the credibility of her allegations, which were critical in determining the outcome of the trial.

The court was tasked with deciding several legal issues, including whether the statements made by the complainant were admissible as evidence and whether those statements were reliable and sufficient to establish the defendant's guilt beyond reasonable doubt. The court also had to consider the potential impact of the complainant's age and the nature of the allegations on the admissibility and weight of the evidence. Furthermore, the court needed to examine whether the prosecution had sufficiently proven that the defendant had maintained an unlawful relationship with the child.

The court found that the complainant's statements were admissible, as they were made in a reliable and consistent manner and were corroborated by other evidence. The court emphasised the importance of considering the age and vulnerability of the complainant when assessing the credibility of her allegations. The court concluded that the prosecution had successfully proven that the defendant had maintained an unlawful relationship with the child, and the defendant was found guilty of the charged offence. The court imposed a custodial sentence on the defendant, reflecting the seriousness of the offence and the need for general deterrence.

Orders