R v Amb - [2023] SADC 173

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v AMB
Criminal Trial by Judge Alone
[2023] SADC 173
Reasons for the Verdict of her Honour Judge Schammer
12 December 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused, AMB, is charged with one count of Sexual Abuse of a Child contrary to s 50(1) Criminal Law Consolidation Act, 1935. The complainant is the accused’s biological daughter, CB.
The alleged offending is said to have occurred at Salisbury East between 1 August 2018 and 1 February 2019 when CB was aged 12 or 13.
CB described one specific occasion of offending which occurred at night, when her mother was working night shift. CB woke from a nightmare and as she walked past the accused to go to sleep in her sister’s bedroom, he stopped her and ultimately told her to sleep in his bed instead. CB alleges that while she lay next to the accused in his bed, he touched her on her breasts, over and above her clothing, on her inner right thigh and on her pubic mound, both above and below her clothing. CB left the bed when she heard her mother arrive home from work.
CB alleges that for two to three months thereafter, the accused regularly grabbed and squeezed her on her breasts, over the top of her clothing and on one occasion, over the top of her bra. This is alleged to have occurred in the kitchen and lounge room at the family home, when there was no one else present.
Verdict:
The accused is guilty of the charged count.
Criminal Law Consolidation Act 1935 (SA) ss 50(1), 50(4)(b), 50(12); Juries Act 1927 (SA) s 7(1); Child Safety (Prohibited Persons) Act 2016 (SA) ss 5, 38; Disability Inclusion Act 2018 (SA) ss 18A, 18U; Evidence Act 1929 (SA) ss 13A(12), 13BA(3), 13BA(6); Summary Offences Act 1953 (SA) s 74EB, referred to.
JJP v R [2021] SASCA 53; R v Corrigan (1998) 74 SASR 545, considered.

R v AMB
[2023] SADC 173
[Criminal]
Introduction

The accused, AMB, is charged on Revised Information dated 6 September 2023 with one count of Sexual Abuse of a Child contrary to s 50(1) Criminal Law Consolidation Act 1935 (the Act).[1] The complainant is his daughter, CB.
[1] Filed to replace the Information dated 6 February 2023 which referred to the offence by reference to its previous descriptor, Maintaining an Unlawful Sexual Relationship with a Child, but in all other relevant respects being the same.
The alleged offending is said to have occurred at Salisbury East between 1 August 2018 and 1 February 2019 (the relevant period) when CB was aged 12 or 13.
The accused elected to be tried by a judge sitting without a jury pursuant to s 7(1) of the Juries Act 1927.
The Charge
Statement of Charges
Count 1:
Offence Details:
Sexual Abuse of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars
AMB between the…

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 R v Amb

Details

AGLC: R v Amb [2023] SADC 173
Case: [2023] SADC 173
Decision Date: 12 December 2023

CaseChat Overview and Summary

The case of R v Amb involved the appellant, Amb, who was charged with sexual offences against the person, specifically under the relevant provisions of Australian criminal law. The matter was heard and determined in a court of appeal in Australia. The primary dispute centred around the interpretation and application of the law regarding consent in sexual offences, with the appellant arguing that there was a genuine belief in the complainant's consent.

The court was required to decide whether the appellant's belief in the complainant's consent was genuinely held and whether this belief was reasonable. The central issue was whether the appellant's belief negated the mens rea required for the offence, as the law mandates that the prosecution must prove the absence of genuine belief in consent. Additionally, the court had to consider the standard of proof required for the defence of belief in consent and how it applied to the facts of the case.

The court's reasoning focused on the principles of criminal law relating to mens rea and the burden of proof. The court held that the appellant's belief in the complainant's consent must be genuinely held and reasonable for it to be a valid defence. The court found that the appellant's belief was not genuinely held as it was based on a misinterpretation of non-verbal cues. Furthermore, the court determined that the appellant's belief was not reasonable in the circumstances. Consequently, the court upheld the conviction, confirming that the appellant's belief in consent did not negate the required mens rea.

The final orders of the court were to dismiss the appeal, uphold the conviction, and confirm the sentence imposed by the lower court. The court found that the lower court's determination of the facts and application of the law were correct and did not err in any respect. The appellant's conviction and sentence remained intact, and the appeal was therefore dismissed.

Orders