WGC v The Queen

The High Court of Australia considered an appeal by WGC against his convictions for unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA). The prosecution alleged that the offences occurred between 31 January 1986 and 28 February 1986, when the complainant was 13 years old. The appellant contended that the offences occurred in 1989 when the complainant was 16, and that he reasonably believed she was over 17, which would have constituted a defence under s 49(4) of the Act.

The central legal issues before the High Court were whether the date of the alleged offences, as particularised in the Information, was a material particular that the prosecution was required to prove beyond reasonable doubt, and whether the jury's verdicts were uncertain due to the possibility of different jurors reaching their conclusions via different factual findings regarding the date of the offences and the availability of the defence. The appellant also raised issues concerning sentencing, but these were considered incidental to the primary arguments.

The Court noted the general rule that the date of an offence is not a material particular unless it is an essential element of the offence itself. However, the Court found that the specific circumstances of this case, including the significant delay between the alleged offences and the trial, and the potential for the defence under s 49(4) to be available if the offences occurred in 1989, meant that the date of the offences had become a material particular. The Court reasoned that the prosecution's failure to prove the date as particularised, or to amend the Information to allege alternative dates, meant that the jury could not be certain of the basis of their conviction. Consequently, the Court held that the trial judge erred in failing to direct the jury that the date was a material particular.

The High Court allowed the appeal, quashed the convictions, and ordered a new trial. The Court concluded that the verdicts were uncertain because it was not possible to know whether the jury had convicted the appellant on the basis of the offences occurring in 1986 (when the defence was unavailable) or in 1989 (when the defence might have been available). This uncertainty, coupled with the materiality of the date, meant that the convictions could not stand.