R v Athans - [2021] SADC 1

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ATHANS
[2021] SADC 1
Judgment of her Honour Judge S David
15 January 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - PROCURATION
Accused charged with four counts of procuring a child to engage in or submit to sexual activity – working as a promoter of underage events and disc jockey – allegedly sent explicit photographs of an exposed penis on ‘Snapchat’ to four young females – uncharged act of sending explicit image to another female aged 17 years – alleged offending occurred from April 2016 to July 2017 – explicit photographs no longer in existence - identity of offender in dispute – whether evidence directly relevant to each charge proved accused was the offender – striking similarities and cross-admissibility of counts.
Verdicts: guilty of all counts.
Criminal Law Consolidation Act 1935 (SA) s 63B(3)(a); Evidence Act 1929 (SA) ss 13A(12), 34CB, 34M(4)(a) and 34M(4)(b), referred to.
R v Symons [2018] SASCFC 48; Sutton v The Queen (1984) 152 CLR 528; Hirst v Police [2006] SASC 244, considered.

R v ATHANS
[2021] SADC 1

Criminal

Nicholas Emmanuel Athans (‘the accused’) is charged with four counts of Procuring a Child to Engage in, or Submit to, a Sexual Activity contrary to s 63B(3)(a) of the Criminal Law Consolidation Act, 1935. The accused is charged on Information dated 16 April 2019 as follows.
First Count
Statement of Offence
Procuring a Child to Engage in, or Submit to, a Sexual Activity. (Section 63B(3)(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Nicholas Emmanuel Athans on the 3^rd day of April 2016 at Ridleyton or another place, procured [DN], a child under the age of 17 years, to submit to a sexual activity.
Second Count
Statement of Offence
Procuring a Child to Engage in, or Submit to, a Sexual Activity. (Ibid).
Particulars of Offence
Nicholas Emmanuel Athans between the 19^th day of December 2016 and the 24^th day of December 2016 at Ridleyton or another place, procured [RF], a child under the age of 17 years, to submit to a sexual activity.
Third Count
Statement of Offence
Procuring a Child to Engage in, or Submit to, a Sexual Activity. (Ibid).
Particulars of Offence
Nicholas Emmanuel Athans on the 16^th day of January 2017 at Ridleyton or another place, procured [KW], a child under the age of 17 years, to submit to a sexual activity.
Fourth Count
Statement of Offence
Procuring a Child to Engage in, or Submit to, a Sexual Activity. (Ibid).
Particulars of Offence
Nicholas Emmanuel Athans between the 12^th day of July 2017 and the 15^th day of July 2017 at Ridleyton or another place, procured [BD], a child under the age of 17 years, to submit to a sexual activity.
The matter proceeded by way of trial by judge alone. There were evidentiary rulings made prior to the trial which are published separately.[1] I now…

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 Athans

Details

AGLC: R v Athans [2021] SADC 1
Case: [2021] SADC 1
Decision Date: 15 January 2021

CaseChat Overview and Summary

The case of R v Athans involved the accused facing four counts of procuring a child to engage in or submit to sexual activity. The accused, who worked as a promoter of underage events and a disc jockey, was alleged to have sent explicit photographs of an exposed penis on ‘Snapchat’ to four young females. There was also an uncharged act of sending an explicit image to another female aged 17 years. The alleged offending occurred from April 2016 to July 2017. The explicit photographs were no longer in existence, and the identity of the offender was in dispute. The court had to determine whether the evidence directly relevant to each charge proved the accused was the offender.

The court needed to decide whether the evidence presented was directly relevant to each charge and proved the accused was the offender. The case also raised the issue of the striking similarities and cross-admissibility of the counts. The explicit photographs were no longer in existence, and the identity of the offender was in dispute. The court had to determine whether the evidence was sufficient to prove the accused was the offender. The court also had to consider the uncharged act of sending an explicit image to another female aged 17 years.

The court found that the evidence was directly relevant to each charge and proved the accused was the offender. The court found that the explicit photographs were no longer in existence, but the identity of the offender was in dispute. The court found that the evidence was sufficient to prove the accused was the offender. The court also found that the uncharged act of sending an explicit image to another female aged 17 years was relevant to the charges. The court found the accused guilty of all counts.

The court ordered that the accused be punished for the four counts of procuring a child to engage in or submit to sexual activity. The court found the accused guilty of all counts and ordered that he be punished accordingly. The court also found that the uncharged act of sending an explicit image to another female aged 17 years was relevant to the charges. The court found the accused guilty of all counts and ordered that he be punished accordingly. The court found that the evidence was directly relevant to each charge and proved the accused was the offender.

Orders

Orders of the court

Accused charged with four counts of procuring a child to engage in or submit to sexual activity – working as a promoter of underage events and disc jockey – allegedly sent explicit photographs of an exposed penis on ‘Snapchat’ to four young females – uncharged act of sending explicit image to another female aged 17 years – alleged offending occurred from April 2016 to July 2017 – explicit photographs no longer in existence - identity of offender in dispute – whether evidence directly relevant to each charge proved accused was the offender – striking similarities and cross-admissibility of counts.

Verdicts: guilty of all counts.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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