W, JD v Police - [2005] SASC 87

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
W, JD v POLICE
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice White)
15 March 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
Appeal against conviction in the Youth Court - whether trial judge erred in finding appellant guilty of alternative charge of indecent assault - whether any room for conviction of alternative offence - circumstances in which alternative verdict is available - appeal allowed.
Criminal Law Consolidation Act 1935 (SA), s 56, s 48, s 75; Evidence Act 1929 (SA), s 28, referred to.
R v Salmon [1969] SASR 76, discussed.
S v The Queen (1989) 168 CLR 266; Johnson v Miller (1937) 59 CLR 467, considered.

W, JD v POLICE
[2005] SASC 87
Full Court: Doyle CJ, Vanstone and White JJ

DOYLE CJ: I agree with the orders proposed by Vanstone J, and with her reasons for making these orders.
VANSTONE J: A youth, whom I shall call J, was convicted in the Youth Court by the Senior Judge of indecent assault, contrary to s 56 Criminal Law Consolidation Act 1935 (“the Act”). He appeals against that conviction upon several grounds, the principal one of which raises important issues relating to the way in which the trial proceeded.
The information upon which J was tried charged two counts. The first was that of indecent assault. It was particularised as having occurred on 16 August 2002 at Burton. The second count charged rape, contrary to s 48 of the Act. The particulars alleged that on the same date and place, J had sexual intercourse with the complainant without her consent.
Further particulars were given in the course of the prosecutor’s opening address to the Judge. Only one incident gave rise to the charges. It occurred at the home of J and his sister, who was a friend of the complainant. It occurred in the living room of that home, late in the evening of the relevant day. It was alleged – and not disputed – that present in the living room at that time were the complainant and J, his younger sister and brother. In essence it was alleged that during a period in which the four adolescents were watching videos, the complainant fell asleep and that she awakened to find her nightdress pulled up to the level of her hips, and J’s erect penis in her vagina. It was said that the complainant could not be sure of the degree of penetration.
In his opening address the police prosecutor made no mention of what conduct was represented by the count of indecent assault. If it was there merely to provide an alternative offence, in case the Judge was left in doubt as to whether penetration had occurred, then it was superfluous. Section 75 of the Act makes available various alternative verdicts on charges of rape and unlawful sexual intercourse for…

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 W, JD v Police

Details

AGLC: W, JD v Police [2005] SASC 87
Case: [2005] SASC 87
Decision Date: 15 March 2005

CaseChat Overview and Summary

In the case of W, JD v Police, the appellant, a youth, appealed against his conviction in the Youth Court for an alternative charge of indecent assault. The Youth Court found the appellant guilty of the alternative charge of indecent assault after considering evidence and arguments presented by both parties. The appellant challenged the decision, arguing that the trial judge erred in finding him guilty of the alternative charge and that there was no room for a conviction of the alternative offence.

The court had to determine whether the trial judge made an error in concluding that the appellant was guilty of the alternative charge of indecent assault. The court also had to consider the circumstances in which an alternative verdict is available and whether there was any room for a conviction of the alternative offence. The court examined the evidence presented and the arguments made by both parties to determine whether the trial judge's decision was correct.

The court found that the trial judge erred in finding the appellant guilty of the alternative charge of indecent assault. The court held that there was no room for a conviction of the alternative offence based on the evidence presented. The court concluded that the trial judge should have directed a verdict of not guilty on the alternative charge. The appeal was allowed, and the conviction was quashed. The court's decision sets out the circumstances in which an alternative verdict is available and provides guidance for future cases.

Orders