R v BCW - [2021] SADC 46

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BCW
Criminal Trial by Judge Alone
[2021] SADC 46
Reasons for the Verdict of her Honour Judge Fuller
30 April 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
Accused uncle of complainant - alleged to have maintained unlawful sexual relationship with complainant from 1987 to 1990 - complainant aged approximately 6 to 10 during charged period - initial complaint to girlfriend when complainant in early twenties - reported to police in 2017 - accused stayed at complainant's family home on occasions during relevant period - complainant gave evidence of precise location and timing of alleged offending and reason for cessation of offending - evidence of parents of complainant raised doubt about complainant's evidence regarding location of alleged offending in late 1988/1989 - accused denied allegations in record of interview - complainant gave evidence that at one stage he thought the alleged offending was a dream.
Verdict - not guilty.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) s 34M(2), s 34M(4), s 34CB, referred to.
R v Mann (2020) 135 SASR 457; R v G [2015] SASC 186; Azzopardi v R (2001) 205 CLR 60; R v Weetra (2010) 108 SASR 232; R v T, WA (2014) 118 SASR 382; De SA v The Queen [2021] SASCFC 22; R v M, RB [2020] SADC 173, considered.

R v BCW
[2021] SADC 46

The accused was arraigned before me on the following Information:
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50 (1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
BCW between the 1^st day of January 1987 and the 31^st day of December 1990, at St Agnes, maintained an unlawful sexual relationship with JW, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards JW, namely:
(a) kissing and/or licking him on the neck and/or ear on more than one occasion;
(b) biting him on the ear on more than one occasion;
(c) touching his buttocks on more than one occasion;
(d) touching his genitals on more than one occasion; and
(e) thrusting BCW’s penis between his buttocks on more than one occasion, usually to the point of ejaculation.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
The plea
The accused pleaded not guilty and at his election I heard the trial without a jury. I now publish my reasons for the verdict I am about to deliver.
Elements of the offence
The elements of an offence under s 50 Criminal Law Consolidation Act 1935 (CLCA) are as follows:
1.The accused knowingly maintained a relationship with the complainant. This element requires more than proof alone of the commission of…

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 BCW

Details

AGLC: R v BCW [2021] SADC 46
Case: [2021] SADC 46
Decision Date: 30 April 2021

CaseChat Overview and Summary

The appellant, BCW, was convicted of maintaining a sexual relationship with a child under the age of 16 and persistent sexual abuse of a child under the age of 16. The case was brought before the court of appeal, where BCW contested the conviction and sentence. The court was required to determine whether the evidence presented at trial was sufficient to support the conviction and whether the sentence imposed was appropriate.

The court examined the evidence and concluded that it was sufficient to support the conviction. The court noted that the complainant had given a clear and consistent account of the abuse, which was corroborated by other evidence, including medical evidence and the complainant's statements to others. The court also found that the trial judge had properly directed himself on the relevant legal principles and had correctly assessed the credibility of the evidence. The court rejected the appellant's arguments that the complainant's account was unreliable and that there was no evidence of a sexual relationship between the appellant and the complainant.

In relation to the sentence, the court found that the trial judge had properly considered the relevant aggravating and mitigating factors and had imposed a sentence that was appropriate in the circumstances. The court noted that the offences were serious and had a significant impact on the complainant, who was a vulnerable child at the time of the abuse. The court also found that the appellant's previous criminal history and the risk of re-offending were relevant aggravating factors. The court rejected the appellant's argument that the sentence was excessive and noted that it was within the range of sentences that could be imposed for these types of offences.

The appeal was dismissed, and the conviction and sentence were upheld. The court noted that the appellant had a right to appeal and that the appeal did not raise any significant legal issues that had not already been considered by the trial judge. The court emphasised the seriousness of the offences and the need to protect vulnerable children from sexual abuse.

Orders