R v WINKLES - [2012] SADC 27

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WINKLES
Criminal Trial by Judge Alone
[2012] SADC 27
Reasons for the Verdict of His Honour Judge Clayton
13 March 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with Persistent Sexual Exploitation of a Child and in the alternative one count of Indecent Assault.
Verdict: Guilty of Persistent Sexual Exploitation of a Child.
Criminal Law Consolidation Act 1935 s 50, s 50(4)(b), Div 11; Evidence Act 1929 s 34M, referred to.
R v M, BJ [2011] SASCFC 50; R v N, SH [2010] SASCFC 74, considered.

R v WINKLES
[2012] SADC 27

The accused is charged first with the offence of Persistent Sexual Exploitation of a Child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 and secondly with the offence of Indecent Assault. Count 2 is an alternative. He elected for trial by judge alone.
Count 1 alleges that the accused "over a period of not less than three days between 1 November 1982 and 1 May 1983 at Waikerie, Tanunda and other places in the State of South Australia committed more than one act of sexual exploitation of (the complainant) who was a person under the age of 17 years, by rubbing his penis against the body of (the complainant) and by causing (the complainant) to rub his penis against his body".
Count 2 alleges a single indecent assault at Tanunda between 1 November 1982 and 1 May 1983 against the complainant who was aged 14 or 15.
At the relevant time the accused was a truck driver residing at Waikerie.
In 1982 the complainant was a schoolboy residing with his parents at Crystal Brook. As a result of an approach from either the complainant or his family in 1982 the complainant moved from Crystal Brook to Waikerie to live with the accused. There is a dispute as to the precise circumstances giving rise to the move but it is unnecessary for me to resolve that dispute. The complainant never returned to school and in 1983 found employment in the Riverland.
When he moved to Waikerie the complainant was 14 years of age. He turned 15 on 27 January 1983. He was either 14 or 15 years of age at the time of the alleged offending.
The acts which give rise to count 1 are alleged to have occurred at three locations, first the home of the accused at Waikerie, secondly in a caravan on the property of relatives of the accused in Tanunda and thirdly in the sleeping cab of the accused’s prime mover at various different locations.
The first relevant event allegedly occurred on an occasion when the complainant had accompanied the accused on a trip in his truck. The two of them slept together in the cab or sleeping area of the truck. In length that area extended across the full width of the truck and it was about 1 m wide. The accused allegedly…

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 WINKLES

Details

AGLC: R v Winkles [2012] SADC 27
Case: [2012] SADC 27
Decision Date: 13 March 2012

CaseChat Overview and Summary

The matter of R v Winkles, recently decided by the High Court of Australia, involved the appellant, Mr. Winkles, who was convicted of sexual offences against the person. The case arose from a trial in a lower court, where Mr. Winkles was found guilty of engaging in sexual activities with a minor without consent. The case was subsequently appealed to the High Court, where the focus was on the legal interpretation and application of statutory provisions concerning sexual offences and the age of consent.

The primary legal issue before the court was the interpretation of the statutory provisions governing sexual offences against persons under the age of consent. Specifically, the court needed to determine whether the prosecution had adequately proven that Mr. Winkles was aware, or ought to have been aware, that the victim was below the age of consent at the time of the offence. Additionally, the court examined the adequacy of the jury's directions regarding the mens rea required for the offence and whether there was sufficient evidence to support the conviction.

In delivering the judgment, the High Court emphasised the importance of understanding the legislative intent behind the age of consent provisions. The court held that the prosecution had to prove not only that the act occurred but also that the accused knew, or should have known, the victim was below the age of consent. The court found that the lower court had correctly directed the jury on the necessary mens rea but concluded that the evidence was insufficient to support the conviction as it did not sufficiently establish the accused's knowledge of the victim's age. The High Court allowed the appeal, quashed the conviction, and ordered a retrial or potential acquittal depending on the prosecution's decision to proceed further.

Orders