R v SAA

SAA was also charged with four discrete offences of a sexual nature to which he pleaded guilty. Those offences range over the same period.

SAA has made an application pursuant to section 614 of the Criminal Code for a no jury order. Chapter 9A of the Criminal Code, "Trial by Judge Alone" provisions were given assent on the 19th of September 2008. It follows that there is very little developed jurisprudence in relation to applications of this nature.

Both parties have referred me to a judgment of Mackenzie J delivered on the 28th of November 2008 in the matter of R v Clough [2008] QSC 307 which, as far as I know, is the first and only reported case involving a consideration of these provisions. His Honour, in his usual erudite and thorough way, examined some developed jurisprudence in relation to similar provisions in the West Australian Criminal Code, and I have read and considered his Honour's reasons carefully.

As his Honour notes, section 615 provides that a Court may make a no jury order if it considers it is in the interests of justice to do so. His Honour noted that that is an unfettered discretion to make such an order if, having regard to the issues of the particular case and any other matters, bearing in mind what might be properly encompassed in the notion of the interests of justice in that case, a Judge considering the application is of a view that it is in fact in the interests of justice to make such an order.

This is a most unusual case. The applicant has pleaded guilty to four offences ranging over a five year period from when the complainant child, his daughter, was aged three to when she was seven.

The evidence will establish that she is now 16 and that in about 2000 she revealed to her mother that her father had touched her some years previously, and when confronted the next day, presumably by his wife, the applicant admitted misconduct. He and the complainant's mother then separated, and he sought counselling. After some time, supervised contact between himself and the child was permitted.

The evidence will establish that when the child was about 13 she began to suffer behavioural and psychological problems, and counselling was sought. It appears that through a counsellor and/or a family friend, the matter ultimately came to the attention of the police.

On the 23rd of March 2008 the police interviewed the applicant. He made admissions to indecently touching the complainant in the area of her vagina. His particular admissions in the record of interview are the basis for counts 2 and 3.

Generally he admitted touching the child a few times over probably two years, and when pressed he said "It could have been 10 times".

Based on his admissions, and without the child being interviewed, the applicant was charged with three offences of indecent treatment. He was committed for trial to the District Court, and the matter was listed for sentence in August of 2008.

The sentence hearing was then adjourned so the police could interview the child and/or obtain a victim impact statement.

On the 22nd of September 2008 police interviewed the complainant pursuant to section 93A of the Evidence Act. She particularised two incidents of indecent touching that are the subject of counts 3 and 4 which involve touching on the area of the vagina under the clothing. Generally she said the touching occurred quite a few times, and when asked to clarify that, she said more than three.

The present indictment was presented on the 26th of September 2008.

It follows that the central issue in the trial is whether the accused maintained a relationship of a sexual nature with the complainant.

The offence-creating section, section 229B of the Criminal Code, has undergone many changes since its introduction into the Criminal Code in 1989.

It is immediately obvious that the dates encompassed in count 1 will in fact cover two different versions of the offence. There is Court of Appeal authority to the effect that in those circumstances the Crown will be obliged to prove the elements of the offence which existed between the 1st of July 1997 and the 1st of May 2003, namely, the prosecution will have to prove beyond a reasonable doubt that the applicant did an act defined as an offence of a sexual nature in relation to the child on three or more occasions. Clearly that is admitted by the pleas to counts 2 to 5, and clearly if a jury was considering the matter, they would be directed that they would have to agree as to the same three or more offences.

However the Crown must also prove that the unlawful relationship of a sexual nature has been maintained: that is, the Crown will have to prove that it was carried on, kept up or continued. It would have to prove that there was an ongoing relationship of a sexual nature between the defendant and the complainant between the dates set out in the indictment. The Crown would have to prove that there must be some continuity or habituality of sexual conduct, not just isolated incidents.

Clearly the Crown will have no difficulty in proving that at all relevant times the applicant was an adult and the complainant was a child.

Mr Courtney has indicated on behalf of the applicant that the child will not be cross-examined by way of pre-recording of her evidence. So it follows that the only evidence from the complainant before the tryer of fact will be her section 93A statement.

It would follow that there will be no issue as to her truthfulness and reliability, and that the only question will be whether the Crown has satisfied the tryer of fact beyond a reasonable doubt that there was a relationship that was maintained during the relevant period.

As Justice Mackenzie indicated in Clough the discretion is an unfettered one, having regard to the circumstances of a particular case. The circumstances here do not come within any of the circumstances set out in subsection (4) of section 615, and in my view there will be no necessity for there to be an application of objective community standards in relation to indecency in the circumstances of this case in the light of the applicant's plea of guilty and considerable co-operation with the administration of criminal justice.

It has been stated in the Court of Appeal and indeed in the High Court that the charge of maintaining is a particularly complex and difficult charge, and is subject, as the Bench Book will reveal, to quite lengthy and complex directions required by a trial Judge to a jury.

In my view there is considerable merit in the submission made by Mr Courtney on behalf of the applicant that given the applicant's admitted indecent contact with his daughter and his plea of guilty to the four offences, which clearly will be before the tryer of fact, there is at least a danger that a jury would be overcome in considering the only live issue before it if it was a jury trial.

In those circumstances I am satisfied that this is a case in which it would be in the interests of justice to make a no jury order in relation to the trial of count 1; and I so order.