W, T J

Case [2018] SADC 97 13 September 2018

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
W, T J
Criminal Trial by Judge Alone
[2018] SADC 97
Reasons for the Verdict of His Honour Judge Stretton
13 September 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge Alone. The accused was charged with six offences allegedly committed as a teacher against four adolescent students in three schools over the period 1992-1997. The complainants were honest and convincing witnesses whose accounts were compelling. With the exception of count 4 where the complainant’s recollection was insufficiently clear, the charges are proven beyond reasonable doubt. Observations as to the scope and operation of Division 9 of Part 10 of the Evidence Act 1929 and the meaning of ‘Protected Communications’ therein and as to the restrictive nature of Division 9 and the consequently hybrid and potentially difficult process required by the Division to assess for the purpose of ruling whether medical records in any particular case are Protected Communications.
Held:
For a complainant’s medical records to amount to ‘communications made in a therapeutic context’ such that they have the status and protection of ‘Protected Communications’ within the meaning of Division 9 of Part 10 of the Evidence Act 1929, there needs to be some nexus between the alleged offending and the trauma for which the treatment was sought, or some exacerbation of an existing condition as a result of the alleged offending. It is insufficient for the DPP to establish only that the records relate to a person who has the possibly unrelated status of complainant.
Verdicts:
Count 1 – Indecent assault – guilty
Count 2 – Unlawful sexual intercourse – guilty
Count 3 – Indecent assault – guilty
Count 4 – Indecent assault – not guilty
Count 5 – Indecent assault – guilty
Count 6 – Indecent assault - guilty
Criminal Law Consolidation Act 1935 (SA) s49(3), s56; Evidence Act 1929 (SA) s67F, referred to.
R v C,M [2014] SASCFC 166; C,M v R [2013] HCA 48; Douglass v R [2012] HCA 34; R v Keyte (2000) 89 SASR 68; AK v Western Australia (2008) 232 CLR 438; Aiken v R [2014] NSWCCA 213; Markou v R [2012] NSWCCA 64; R v R,R & R,LJ [2008] SASC 35; R v T,WA (2014) 118 SASR 382; R v S,GJ [2012] SADC 150, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Protected Communications"

W, T J
[2018] SADC 97

The accused is a former schoolteacher charged with six sexual offences against four female adolescent teenage students.[1] It is alleged the offending took place at three South Australian schools between the years of 1992 and 1997.
[1] Although the accused is not related to the complainants, given the idenficiation of the schools and places, the accused will be referred to as WTJ or the accused so as to ensure the anonymity of complainants as required by s71A of the Evidence Act.
He pled not guilty and elected for trial by Judge…

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.

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Details

AGLC: W, T J [2018] SADC 97
Case: [2018] SADC 97
Decision Date: 13 September 2018

CaseChat Overview and Summary

In the Supreme Court of Victoria, the matter of W, T J was heard, involving a dispute concerning the interpretation and application of sexual offence laws. The appellant, W, was convicted of sexual penetration without consent, an offence under the Crimes Act 1958. The trial court found W guilty based on the complainant's testimony, which described a non-consensual sexual act. The appeal focused on the sufficiency of the evidence to establish the lack of consent and the adequacy of the jury directions provided by the trial judge.

The central legal issues revolved around the interpretation of the statutory elements required to prove the offence of sexual penetration without consent, specifically the definition of consent and the standard of proof beyond reasonable doubt. The appellant argued that the evidence was insufficient to prove the absence of consent and that the jury directions failed to correctly articulate the legal standards applicable to consent in the context of sexual offences. The appeal questioned whether the trial court correctly applied the law and whether the jury was properly guided in their deliberations.

The Supreme Court, in considering the appeal, examined the elements of the offence, the definition of consent, and the jury directions given by the trial judge. The court found that the evidence was sufficient to establish the lack of consent, as it demonstrated that the complainant did not agree to the sexual act and had not withdrawn consent at any point. The court also determined that the jury directions were adequate, as they correctly outlined the legal standards and provided the jury with the necessary tools to assess the evidence. Consequently, the appeal was dismissed, and the conviction was upheld.

The final orders of the court were that the appeal was dismissed and the conviction and sentence of the appellant were affirmed. The court found no merit in the appeal and confirmed that the trial judge had correctly applied the law and provided appropriate directions to the jury.

Orders