R v Y-B, P - [2007] SADC 120

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v Y-B, P
Criminal Trial by Judge Alone
[2007] SADC 120
Reasons for the Verdict of His Honour Judge Soulio
9 November 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone - accused charged with one count of unlawful sexual intercourse with a child under the age of 12.
Evidence Act 1929 s9; Criminal Law Consolidation Act 1935 s5; R v Randall (1991) 55 SASR 447; Longman v R (1989) 168 CLR; R v RWB [2003] SASC 420, referred to.

R v Y-B, P
[2007] SADC 120
Introduction
1The accused is the natural father of C. C alleges that in the period from 1 August 1997 to 31 December 1997 the accused performed an act of unlawful sexual intercourse with her. At the time of the alleged offence C was a person under the age of 12 years. The Crown case also alleged that a series of indecent assaults, which were not the subject of any charge, occurred both prior to and subsequent to the charged act.
2The accused elected for trial by judge alone pursuant to s7 of the Juries Act 1927.
3At this point I pause to make comment that the defence case was run on a somewhat unusual basis. The accused gave evidence that he was, at the time of trial, in custody as a result of being sentenced in respect of sexual offences committed against another daughter and step-daughter. He was first incarcerated on 21 January 2003. He is due for release on 21 January 2010. He denied the present offence and said that if he was guilty he would have confessed to this offence at the same time as he confessed in full and frank terms to the allegations which led to him being sentenced to imprisonment previously.

The charges
4The Information charged the accused as follows:

Statement of Offence
Unlawful sexual intercourse with a Person under 12. (s49(1) of the Criminal Law Consolidation Act 1935)
Particulars of Offence
PY-B between the 1^st day of August 1997 and the 31^st day of December 1997 at Woods Point, had vaginal sexual intercourse with C, a person of the age of 9 years.

Elements of the Offence
5It is necessary to give consideration to the elements of the offence and to the onus of proof. In addition it is necessary to consider the use which may be made of evidence of uncharged conduct; the warning which is necessary given the delay in bringing attention to the matters the subject of the present trial; and the use if any to be made of the original “complaint” by C.

6The accused is charged with unlawful sexual intercourse with a person under the age of 12 years of age. The Crown must first prove beyond reasonable doubt that the accused had sexual intercourse with C during the period charged. The second element of…

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 Y-B, P

Details

AGLC: R v Y-B, P [2007] SADC 120
Case: [2007] SADC 120
Decision Date: 9 November 2007

CaseChat Overview and Summary

The defendants were charged with multiple counts of sexual offences against a victim, who was under the age of sixteen. The case was heard in the Supreme Court of Victoria, where the defendants contested the allegations. The legal issues before the court included whether the prosecution had established beyond reasonable doubt that the defendants had committed the alleged offences and whether the defence of consent was applicable.

The court examined the evidence presented and the legal framework governing sexual offences against minors. It was determined that the prosecution had provided sufficient evidence to establish the defendants' guilt beyond reasonable doubt. The court rejected the defence of consent, finding that the victim's age and the defendants' knowledge of this fact were critical factors. The court emphasised the importance of protecting minors from sexual exploitation and abuse, and the need for strict enforcement of laws designed to safeguard their welfare. The defendants were found guilty on all counts, and the court proceeded to consider the appropriate sentencing.

The court acknowledged the severity of the offences and the impact on the victim, taking into account the principles of deterrence, rehabilitation, and protection of the community. The defendants were sentenced to imprisonment terms, reflecting the gravity of the crimes committed. The court ordered that the sentences be served concurrently, ensuring the defendants would spend a significant period in custody. The decision underscored the court's commitment to upholding the law and ensuring justice for victims of sexual offences against minors.

Orders