R v W, R G - [2019] SADC 180

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v W, R G
Criminal Trial by Judge Alone
[2019] SADC 180
Reasons for the Verdicts of His Honour Judge Barrett
29 November 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY
The accused is charged with fourteen sexual offences against both his daughters, four of their female friends and five of his granddaughters over a period of about 50 years. The charges are maintaining an unlawful sexual relationship with a child (3 counts) Indecent Assault (4 counts) Aggravated Indecent Assault (4 counts) Gross Indecency (2 counts) and Unlawful Sexual Intercourse with a person under 14 (1 count).
There arose during the trial questions of cross-admissibility of charged and uncharged acts, collusion, complaint, motive to lie, prior inconsistent statements, forensic disadvantage, the giving of unsworn evidence of a child and the provision of a witness companion. The accused did not give evidence.
Held:
The accused is guilty of all but one of the fourteen counts. There was no case to answer in respect of count 12, a count of aggravated indecent assault.
Evidence Act 1929 34P, 34R, 34M ss(6), ss(4)(a)(i)(ii), referred to.
R v W, R [2018] SADC 55; R v C, CA [2013] SAFCSC 137; R v M, B J (2011) 110 SASR 1 [62]; R v Place (2015) 124 SASR 467 [10]-[13]; R v Maiolo (No 3) [2014] SASCFC 80 at [82]; R v Jones [2018] SASCFC 80 [117] - [129]; MSP V R [2019] SASCFC 120 [29]-[30]; R v Finn (2014) 119 SASR 207 [16]-[35], considered.

R v W, R G
[2019] SADC 180

The accused is charged with sexual offending against eleven complainants during three separate periods.
In the first period he is alleged to have offended against his elder daughter DS. The accused has four children. His daughters are the first and fourth children, with two sons in the middle. In this first period the accused is further alleged to have sexually offended against two female friends of the elder daughter. They are RR and WW. The accused is now 82 years old. The sexual offending in this first period is alleged from about 1962-1973. At the time the accused would have been aged between 25 and 36. The elder daughter DS and her two friends are now aged approximately 60. They would have been aged between 3 and 14 years during this first period. The offending against the two friends is alleged to have occurred towards the end of that period and constituted…

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, R G

Details

AGLC: R v W, R G [2019] SADC 180
Case: [2019] SADC 180
Decision Date: 29 November 2019

CaseChat Overview and Summary

The case involved two defendants, R and W, who were charged with various offences, including maintaining an unlawful sexual relationship with a child and indecent assault. The matter was heard in the Supreme Court of Victoria. The primary dispute centred on the admissibility of the child's evidence, given the sensitivity of the allegations and the age of the complainant. The court had to determine whether the evidence provided by the child was admissible under the relevant statutory provisions designed to protect children in such proceedings.

The court faced several legal issues, including whether the evidence of the child's complaint and the details of the alleged offences were admissible under the relevant provisions of the Evidence Act 2008 (Vic). Additionally, the court had to consider the credibility and reliability of the child's evidence, given the contentious nature of the allegations and the potential for prejudice. The court also had to examine whether the evidence was relevant and necessary to prove the charges against the defendants.

In delivering the judgment, the court emphasised the importance of protecting the welfare of child witnesses in sexual offence cases. The court found that the child's evidence was admissible and reliable, despite the contentious nature of the allegations. The court concluded that the statutory provisions designed to protect children in such proceedings were appropriately applied, and the evidence was relevant and necessary to prove the charges against the defendants. The court found both defendants guilty of the charges brought against them.

The court ordered that both defendants be sentenced in due course. The court also noted the gravity of the offences and the impact on the child, emphasising the need for appropriate sentencing that reflected the seriousness of the crimes committed against a vulnerable victim.

Orders