R v Wjm No. DCCRM-03-937 - [2004] SADC 75

R v WJM
[2004] SADC 75
CRIMINAL – VERDICT
JUDGE DAVID SMITH
Introduction

The accused is charged on Information with six sexual abuse offences – two against TLM and four against MRC. Both complainants are the stepdaughters of the accused. He pleaded not guilty to all six charges and duly elected to be tried by a Judge without a jury (see s7 Juries Act 1927 (SA)). He then applied pursuant to Rule 9 to sever Counts 1 and 2 from Counts 3, 4, 5 and 6 on the basis that he would “be embarrassed and prejudiced by the conduct of his defence if the charges were heard together”. I query the appropriateness of such an application given that the offences were to be tried by a Judge without a jury (R v Abrahamson (1994) 63 SASR 139). Nonetheless, the Crown consented to the severance prior to the argument and so the trial proceeded before me as to Counts 3, 4, 5 and 6 which were offences alleged against MRC. The offending alleged in Count 3 is alleged to have occurred between July 1986 and December 1987 and the offending alleged in Counts 4, 5 and 6 is alleged to be one ongoing incident said to have occurred between 1^st January 1990 and 31^st January 1991.
The Charges
So the trial proceeded before me in respect of Counts 3, 4, 5 and 6, which, as amended at the close of the Crown case, charged the defendant as follows:
“Third Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 12. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
WJM between the 7^th day of July 1986 and the 31^st of December 1987, at Whyalla, had sexual intercourse with MRC, a person under the age of 12 years, by inserting his finger into her vagina.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 12. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
WJM between the 1^st day of January 1990 and the 31^st of December 1991, at Whyalla, had sexual intercourse with MRC, a person under the age of 17 years, by inserting his finger into her vagina.
Fifth Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
WJM between the 1^st day of January 1990 and the 31^st of December 1991 at Whyalla, indecently assaulted MRC.
Sixth Count
Statement of Offence
Attempted Unlawful Sexual Intercourse. (Section 49(3) and 270A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
WJM between the 1^st day of January 1990 and the 31^st of December 1991 at Whyalla, had vaginal sexual intercourse with MRC, a person under the age of 17 years.”
Preliminary Directions
Before I turn to the evidence on both sides, I direct myself as to the elements of the individual offences and further, remind…

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.

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Details

Case: [2004] SADC 75
Decision Date: 21 May 2004

CaseChat Overview and Summary

In the case of R v WJM, the accused faced six charges of sexual abuse against two of his stepdaughters, TLM and MRC. The accused pleaded not guilty and elected to be tried by a Judge without a jury. The trial proceeded with the accused facing four charges related to MRC, while the charges related to TLM were severed. The accused argued that he would be prejudiced by having the charges heard together, but the Crown consented to the severance. The trial focused on four counts against MRC, which included unlawful sexual intercourse, indecent assault, and attempted unlawful sexual intercourse. The alleged offences occurred at two different addresses, with some incidents taking place at the Sutcliffe Street residence and others at the Jeffries Street residence. The prosecution presented evidence from MRC and her mother, DE, while the accused testified in his defence.

The court considered several legal issues, including whether the charges were sufficiently particularised, the permissible use of evidence of uncharged conduct, the standard of proof required for such evidence, the need for a warning regarding the delay in reporting the offences, and the use of MRC's complaints to her mother in 1991 and 2002. The court found that while the evidence of MRC and DE was consistent and convincing, there were inconsistencies in MRC's account that did not undermine the overall credibility of their testimony. The court also found that the accused's admissions, as recounted by DE, corroborated MRC's testimony and amounted to admissions of the offences. However, the court was cautious in considering the evidence due to the significant delays in reporting the offences and the risk of a miscarriage of justice.

After careful scrutiny of the evidence, the court found the accused not guilty of Count 3 (unlawful sexual intercourse at Sutcliffe Street) due to insufficient evidence to prove the exact timing of the offence. However, the court found the accused guilty of Counts 4, 5, and 6, which involved offences at Jeffries Street, including unlawful sexual intercourse, indecent assault, and attempted unlawful sexual intercourse. The court rejected the accused's evidence and accepted the testimonies of MRC and DE, finding them to be credible and reliable witnesses.

Orders