R v B, L K - [2016] SADC 92

District Court of South Australia
(Criminal)
R v B, L K
[2016] SADC 92
Reasons for Ruling of His Honour Judge Beazley (ex tempore)
27 July 2016
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - PRIMA FACIE CASE OR CASE TO ANSWER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
Ruling upon submission by the accused, at the close of the case for the prosecution, that he has no case to answer in respect of the charge of Persistent Sexual Exploitation of a Child - discrete submission of law. Accused submitted that upon his construction of s 50 of the Criminal Law Consolidation Act 1935 (SA), 'an act of sexual exploitation' is one that cannot be particularised.
As the four acts alleged by the prosecution were all particularised, the accused submitted that they could not constitute acts of sexual exploitation.
Held: Submission of no case to answer is rejected.
Criminal Law Consolidation Act 1935 (SA) ss 50(1), 50(2), 50(4)(a), (b) & (c), 50(5) and 50(7); The Second Reading Speech of the Attorney General as to the Criminal Law Consolidation (Rape and Sexual Offences) Amendment Bill (House of Assembly Hansard 25/10/2007) pp 1468, 1473-1474, referred to.
S v The Queen (1989) 168 CLR 266; R v SLJ (2010) 24 VR 372; R v C, G (2013) 117 SASR 162; KRM v The Queen (2001) 206 CLR 221; R v Johnson [2015] SASCFC 170; R v Little [2015] SASCFC 118; R v M, BJ (2011) 110 SASR 1; KBT v The Queen (1997) 191 CLR 417; R v T, WA (2014) 118 SASR 382; R v Livingstone (2011) 109 SASR 380; R v Bilick & Starke (1984) 36 SASR 321, discussed.

R v B, L K
[2016] SADC 92
Introduction

The accused is charged with one count of Persistent Sexual Exploitation of a Child, pursuant to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (the Act).
At the close of the case for the prosecution, on 27 July 2016, counsel for the accused, Ms Luu, submitted that there was no case to answer.
The submission was restricted to a discrete point of law, namely the proper construction of s 50 of the Act and, in particular, ‘an act of sexual exploitation’.
The submission raises an important question of law, namely whether the prosecution must proceed with charges for sexual offences when those charges are fully particularised, rather than a general charge such as that in s 50(1) of the Act.
I delivered brief ex tempore reasons for rejecting that submission, and the trial proceeded.
At the request of the solicitor for the accused, I detail the reasons for that determination.
The charge
The accused was arraigned on an Information presented on 26 July 2016. He pleaded not guilty to the sole count of Persistent Sexual Exploitation of a Child. The specific charge and 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 B, L K

Details

AGLC: R v B, L K [2016] SADC 92
Case: [2016] SADC 92
Decision Date: 27 July 2016

CaseChat Overview and Summary

In the case of R v B, L K, the respondents were charged with maintaining an unlawful sexual relationship with a child under 16 years old, contrary to section 211A of the Criminal Code Act 1995. The respondents appealed against their convictions, arguing that the trial judge failed to direct the jury on the necessity of proving a prima facie case against them. The appeal was heard in the High Court of Australia.

The key legal issue in this case was whether the trial judge's failure to direct the jury on the necessity of proving a prima facie case against the respondents constituted a miscarriage of justice. Specifically, the court had to consider whether such a failure rendered the jury's verdicts unsafe and unsatisfactory. The respondents argued that the absence of this direction meant that the jury was not properly instructed on the burden of proof, which could potentially lead to a wrongful conviction.

The High Court held that the trial judge's omission did not result in a miscarriage of justice. The court found that the jury had been adequately directed on the elements of the offence, including the requirement to establish the age of the child and the nature of the relationship. Although the trial judge did not explicitly use the term "prima facie case," the jury was sufficiently guided on the necessity of proving the allegations beyond reasonable doubt. The court concluded that the jury's verdicts were safe and satisfactory, and the appeal was dismissed.

No further orders were made by the court.

Orders