Springfield Lakes man’s child rape conviction overturned due to ‘error of law’

A child rape case which rocked Ipswich last year is now headed for retrial due to an “error of law” involving a critical piece of evidence.

Aleck Lukas Cornelius Swart outside Ipswich Courthouse on September 5, 2022. Picture: Nicola McNamara

A Springfield Lakes man has had his child rape conviction overturned after the Supreme Court ruled the trial judge withheld crucial evidence from the jury.

Aleck Lukas Cornelius Swart, 46 pleaded not guilty last year to one count of indecent treatment and one count of rape of a child under the age of 12.

It was alleged the offending occurred on one occasion in 2019 and that the alleged victim told her parents about what happened months later on Christmas Eve.

After a three-day trial, a jury declared Mr Swart guilty on both counts.

He was sentenced to two years and nine months in jail, suspended for three years after he served 15 months in custody.

But earlier this year the Supreme Court ruled in favour of Mr Swart’s bid to overturn his conviction.

Appeal documents revealed Mr Swart argued that the trial judge wrongly refused to admit certain evidence and the jury’s verdict was unreasonable given the high bar of reasonable doubt.

The Supreme Court dismissed the second reason, but found grounds for a retrial based on the refusal of the evidence.

The documents revealed trial judge Alexander Horneman-Wren decided at the time of trial that certain information involving another man present in the alleged victim’s life was inadmissible and should not be presented to the jury.

The jury was made aware the other man had been staying at the child’s house about the time of the alleged offending and that the alleged victim would sometimes spend time alone with the other man.

The jury also heard she would sometimes play a game with him in bed called the “kissy-kissy, cuddle-cuddle, tickle-tickle game”.

The court heard at the time that the alleged victim maintained the other man never inappropriately touched her and that the game involved kissing on the cheek, hugging and tickling under her arms.

However, the jury was never told the other man was charged soon after with grooming a (different) child, aged under 16.

At the time of the trial, Judge Horneman-Wren determined this information to be irrelevant and inadmissible.

He stated at the time: “The issue in the trial will be whether those events, as alleged by the child, occurred; not by whom or the identity of the person who performed those acts.

“There is no suggestion that there was any other male person in the house on the occasion that she alleges (that Mr Swart raped her).

“There is certainly no allegation that the related person (the other man) was there at any such time.”

The Supreme Court found Judge Horneman-Wren considered the relevance of the man’s criminal history in terms of determining the alleged offenders’ identity.

But it decided that he failed to consider how it may have also been relevant in terms of explaining why the alleged victim could have had knowledge of sexual matters, if Mr Swart was indeed innocent.

“The judge’s ruling constituted an error of law … the appeal should be allowed, the convictions set aside and a retrial ordered,’’ the appeal documents stated.