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[2014] WASCA 44

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SI -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2014] WASCA 44

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASCA 44
Court:	THE COURT OF APPEAL (WA)	Published:	27/02/2014
Case No:	CACR:211/2013	Heard:	14 FEBRUARY 2014
Coram:	PULLIN JA BUSS JA MAZZA JA	Delivered:	14/02/14
No of pages:	4	Judgment Part:	1 of 1
Result:	Appeal allowed Conviction set aside Judgment of acquittal entered
Category:	B
PDF Version

Parties:	SI THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law and procedure Uncertainty of conviction Provisions of Criminal Code (WA) repealed or replaced New offence created Offence alleged on a date unknown in period covered by former offence and new offence
Legislation:	Acts Amendment (Sexual Offences) Act 1992 (WA) Criminal Code (WA), s 320(2)
Case References:	Kailis v The Queen [1999] WASCA 29; (1999) 21 WAR 100

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SI -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2014] WASCA 44 CORAM : PULLIN JA

BUSS JA
MAZZA JA

HEARD : 14 FEBRUARY 2014 DELIVERED : 14 FEBRUARY 2014 PUBLISHED : 27 FEBRUARY 2014 FILE NO/S : CACR 211 of 2013 BETWEEN : SI

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : CURTHOYS DCJ

File No : IND BUN 26 of 2013

Catchwords:

Criminal law and procedure - Uncertainty of conviction - Provisions of Criminal Code (WA) repealed or replaced - New offence created - Offence alleged on a date unknown in period covered by former offence and new offence

Legislation:

Acts Amendment (Sexual Offences) Act 1992 (WA)

Criminal Code (WA), s 320(2)

Result:

Appeal allowed

Conviction set aside
Judgment of acquittal entered

Category: B

Representation:

Counsel:

Appellant : Mr S Vandongen SC
Respondent : Mr J McGrath SC

Solicitors:

Appellant : Young & Young Barristers & Solicitors
Respondent : Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Kailis v The Queen [1999] WASCA 29; (1999) 21 WAR 100



1 REASONS OF THE COURT: This is an appeal against conviction. The respondent has conceded that the appeal should be allowed. That concession was appropriate. At the hearing of the appeal, this court made the following orders:

1. Appeal allowed.

2. The conviction is set aside.

3. Judgment of acquittal is entered.

2 The relevant background may be briefly stated. The appellant was charged by indictment in the District Court with two counts of sexual penetration of a child under the age of 13 years contrary to s 320(2) of the Criminal Code (WA), and two counts of indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code. He was convicted after trial of one count of sexually penetrating a child under the age of 13 years (count 1) and acquitted of all the other charges. Count 1 involved an alleged digital penetration of the complainant's vagina by the appellant.

3 When the appellant was arraigned, the indictment alleged that count 1 was committed 'on a date unknown between 31 December 1992 and 1 January 1994'. The State's case as to the date on which count 1 was committed relied on the complainant's evidence. The effect of her evidence at trial was that the offence took place some time between 1988, when she was 4 years old, and 1994, when she was 10 years old. She said that she felt that it occurred at the 'lower end' of that range, but she could not be sure.

4 In light of this evidence, at the end of the prosecution case, the prosecutor applied to amend the date on which count 1 was committed to 'on a date unknown between 24 April 1988 and 1 January 1994'. The application was not opposed by the appellant's trial counsel (not his counsel on appeal) and was granted by the learned trial judge, Curthoys DCJ.

5 The offence of sexually penetrating a child under the age of 13 years contrary to s 320(2) of the Criminal Code was introduced into that statute by the Acts Amendment (Sexual Offences) Act 1992 (WA) (the Act). The Act, and s 320(2), commenced operation on 1 August 1992. Prior to that date, the relevant sexual offences set out in ch XXXIA of the Criminal Code required proof of the absence of consent. Chapter XXII of the Criminal Code included offences of unlawful carnal knowledge of a child under the age of 13 years (s 185) and indecent dealing with a child under the age of 16 years (s 189). These provisions were repealed with the commencement of the Act. Unfortunately, the fact that the offence under s 320(2) of the Criminal Code did not exist between 24 April 1988 and 31 July 1992 was overlooked by trial counsel and the learned trial judge when the order was made to amend the indictment.

6 It is trite to say that a person cannot be convicted of an offence which did not exist at the time the alleged conduct relied on by the State occurred. The evidence was insufficient to establish the particular date between 24 April 1998 and 1 January 1994 on which the alleged offence was committed. In these circumstances, there is uncertainty about whether the appellant was convicted of an offence which existed at the time the alleged conduct in question occurred.

7 In these circumstances, there has been a fundamental flaw in the proceedings and, consequently, a miscarriage of justice: Kailis v The Queen [1999] WASCA 29; (1999) 21 WAR 100. The appeal must be allowed, the conviction set aside and a judgment of acquittal entered.

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