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R v Y, Db

R v Y, Db

Case [2005] SADC 97 3 August 2005

Admissibility of Evidence

Criminal Law

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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 97
Preliminary

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…

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, Db

Details

AGLC: R v Y, Db [2005] SADC 97
Case: [2005] SADC 97
Decision Date: 3 August 2005

CaseChat Overview and Summary

In the District Court of South Australia, the accused, DB Y, faced a trial on eighteen counts of sexual offences and indecent assault against three complainants. The accused applied for severance of various counts and for separate trials. The court considered the principles of joinder and severance under the Criminal Law Consolidation Act 1935 (SA) and relevant case law. The court found that the counts were properly joined as they formed a series of offences of a similar character. The key issue was whether there should be separate trials for the counts relating to each complainant. The prosecution argued that the evidence on each count was cross-admissible to rebut the defence of innocent association. The court found that while the evidence was not admissible on the basis of mere similarities or tendency evidence, it was admissible on the basis of coincidence. The court held that the improbability of each complainant independently reporting similar incidents made the evidence cross-admissible to rebut the defence of innocent association. The applications for severance were refused. The court noted that the basis of admission might need to be reconsidered at trial depending on the evidence that was ultimately adduced.

Orders