DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v Y, DB
Reasons for Ruling of His Honour Judge Tilmouth
3 August 2005
CRIMINAL LAW
Offences against the person - prosecution alleging sexual offences and indecent assault against three complainants - application for separate trials - counts properly joined - joint trial of several counts - held evidence on each count admissible on other counts to rebut defence of innocent association.
Criminal Law Consolidation Act 1935 (SA) s 49, s 56, s 278, referred to.
Martin v Osborne (1936) 55 CLR 367; R v Phan (1990) 54 SASR 561, 565; R v Liddy (2002) 81 SASR 22, applied.
Sutton v The Queen (1993-1994) 152 CLR 528, 535, distinguished.
De Jesus v The Queen (1987) 6 ALJR 1; KRM v The Queen (2001) 206 CLR 221; Hoch v The Queen (1985) 165 CLR 292; BRS v The Queen (1997) 191 CLR 275; Pfennig v The Queen (1995) 182 CLR 561, considered.
R v Y, DB
[2005] SADC 97Preliminary
The accused has before the Court pre-trial applications pursuant to s. 278(2) of the Criminal Law Consolidation Act1935 (SA) (“the Act”) for severance of various counts on the Information laid against him and motions for separate trials. He was arraigned and pleaded not guilty to eighteen counts; counts 1-9 and counts 11-18 charge unlawful sexual intercourse contrary to s 49 (3) of the Act. Count 10 alone charges indecent assault contrary to s 56 of the Act.
Factual background
The first seven offences together with the fifteenth, sixteenth and seventeenth are said to have occurred at Morphett Vale, the eighth, ninth, tenth, twelfth, thirteenth and eighteenth at West Beach, and the eleventh at Lonsdale. The Morphett Vale address was that of the accused and his sister, and West Beach was that of two brothers, except count eighteen which allegedly occurred at a carpark in that suburb.
These charges relate to three complainants, each of them young boys aged 12 to 15 at the time of the alleged offending, and said to have occurred between December 2002 and August 2004. Counts 1-4 relate to the first complainant and charge events occurring between December 2002 and January 2003, counts 5-14 relate to the second complainant and relate to events between April 2002 and August 2004 and counts 15-18 relate to the third complainant over the period from September 2003 to November 2003. The brothers are the second and third complainants. It can be seen that the conduct relating to each complainant is broadly sequential, although there is a period of overlapping between the first and second complainants between April 2002 and January 2003 and as between the two brothers between the months of September and November 2003.
The primary submission for the accused is for the charges relating to each complainant to be heard and determined separately. There is a secondary submission for severance of the trial at the first complaint from that of the two…
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- R v Y, Db [2005] SADC 97
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- [2005] SADC 97
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