R v Weygood - [2020] SASC 7

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v WEYGOOD
Criminal Trial by Judge Alone
[2020] SASC 7
Reasons for the Verdicts of The Honourable Auxiliary Justice David
24 January 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
Trial by Judge alone.
The accused was charged with three counts of indecently assaulting a male between 1968 and 1970. At the time, the accused was a Marist Brother teaching at St Joseph’s College. The complainant, a teenager during the relevant period, was one of his students.
On the prosecution case, it was alleged that the accused indecently assaulted the complainant in a parked car by touching the complainant in the area of his anus and penis over his clothes (the conduct subject of counts 1 and 2). The alleged conduct subject of count 3 was that the accused grabbed the complainant’s penis over his clothes whilst engaging in “horseplay” on a couch at the complainant’s house.
At the end of the prosecution case, the parties were united that there was no case to answer in relation to count 3. Consequently, a verdict of not guilty was entered on count 3 and the trial proceeded on counts 1 and 2.
Held: In relation to counts 1 and 2, the accused is not guilty of indecently assaulting the complainant.
Criminal Law Consolidation Act 1935 (SA) s 70(1)(c), referred to.
R v Jones [2018] SASCFC 80, considered.

R v WEYGOOD
[2020] SASC 7
Criminal: Trial by Judge Alone

DAVID AJ: The accused, Joseph William Weygood, is charged with three counts of indecently assaulting a male contrary to s 70(1)(c) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) (as it then was). I set out the Information in full:
INFORMATION
Criminal Procedure Act 1921 s 123(1)(a)
For arraignment on 20 August 2019
Information of the Director of Public Proseuctions
Joseph William Weygood is charged with the following offence(s):
First Count
Statement of Offence
Indecently Assault a Male. (Section 70(1)(c) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Joseph William Weygood between the 1^st day of January 1968 and the 31^st day of December 1969 at Melrose Park, indecently assaulted [the complainant], a male person, by touching his penis.
Second Count
Statement of Offence
Indecently Assault a Male. (Section 70(1)(c) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Joseph William Weygood between the 1^st day of January 1968 and the 31^st day of December 1969 at Melrose Park, indecently assaulted [the complainant], a male person, by touching the area of his anus.
Third Count
Statement of Offence
Indecently Assault a Male. (Section 70(1)(c) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Joseph William Weygood between the 1^st day of January 1970 and the 31^st day of December 1970 at Clarence Park, indecently assaulted [the complainant], a male person,…

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 Weygood

Details

AGLC: R v Weygood [2020] SASC 7
Case: [2020] SASC 7
Decision Date: 24 January 2020

CaseChat Overview and Summary

The case of R v Weygood was heard before a judge sitting alone without a jury. The defendant was charged with two counts of indecent assault, with the alleged acts occurring over a significant period in the past. The court needed to determine whether the prosecution had proved beyond reasonable doubt that the defendant had committed the acts of indecent assault as charged.

The primary legal issue the court had to address was whether the prosecution had established the essential elements of the charges: that the defendant had deliberately placed his hand in the complainant’s buttocks and touched his penis. The court also had to consider the relevance of other incidents of alleged corporal punishment and general brutality in determining the credibility of the complainant’s evidence and the accused's state of mind. The judge ultimately decided that these extraneous incidents were not relevant to proving the specific acts of indecent assault.

In reaching its decision, the court emphasised that the lack of an early complaint, the long delay before the incidents were reported, and the nature of the alleged acts all contributed to significant doubts about the reliability of the complainant’s evidence. The judge found that while the complainant’s testimony was credible in some respects, the combination of these factors meant that the court could not be sure beyond reasonable doubt that the alleged acts of indecent assault had occurred. Consequently, the judge entered a verdict of not guilty on both counts.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

At the conclusion of the prosecution case, by consent I entered a verdict of not guilty in relation to count 3 as there was no evidence of indecent touching. The defendant then elected not to give evidence and called no evidence.Consideration In relation to the charged counts, it has to be proved beyond reasonable doubt that the accused placed his hand in the buttocks of the complainant as described before count 2 can be made out, and touched his penis in the way described before count 1 can be made out. If it has been proved beyond reasonable doubt that these things happened deliberately in that way, because of the age of the complainant it is an assault carried out in circumstances of indecency. I have also directed myself that before I can use the evidence of the Broken Hill incident in the way already described, it must be proved beyond reasonable doubt to have happened. In considering this matter, other than the incidents themselves, I must look at the evidence as a whole. In her careful and thorough addresses to me (both orally and written), Ms McDonald urged upon me that the evidence of corporal punishment and general brutality has a role to play because it is relevant to the failure to complain and is relevant as to why the accused felt that he could engage in behaviour such as alleged. I respectfully disagree with that submission. It is clear on the whole of the evidence that although there may have been degrees between students and teachers, this abhorrent behaviour of a bygone age was considered to be normal. The fact of a lack of complaint is not confined to the time the complainant was at school, but continued until November 2016. There is no evidence before me that the alleged behaviour is in any way connected or dependent upon any form of corporal punishment. I consider that aspect of the case to be irrelevant to the issue as to whether the acts that were the subject of the charge have been proved to have taken place. I consider the lack of an early complaint to be not insignificant. I have taken into account the complainant’s explanation, but the combination of waiting so many years to complain about matters of a sexual nature compared with his willingness to complain about brutality causes me some concern. Added to that the length of time from the alleged incidents to trial and the length of time from the alleged incidents to original complaint are so great that they give me great concern, not necessarily about the credibility of the complainant but in relation to his reliability. A lengthy period of time must have an effect on memory and the possibility of reconstruction. It is even more dangerous when the actual events themselves took a matter of seconds. There is a further danger when those actions which are the subject of the charge happened during the course of other behaviour, namely “horseplay” which of itself does not amount to an offence. In relation to both incidents, the uncharged occasion at Broken Hill and the charged acts, the behaviour of the accused in his relationship with the complainant could only be described as unusual, if not suspicious. Nevertheless, in deciding whether it is proved that these events happened, I am short of the certainty that is required to convict. Being in that state of mind, I find the accused not guilty of both counts.Verdicts