R v BTR - [2021] SADC 148

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BTR
Criminal Trial by Judge Alone
[2021] SADC 148
Reasons for the Verdict of his Honour Judge Muscat
16 December 2021
CRIMINAL LAW - PARTICULARL OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The defendant is charged with Maintaining an Unlawful Sexual Relationship with a Child.
Defendant is the biological grandfather of the complainant - offending alleged to have occurred between 2009 and 2014 - complainant aged between nine and 14 years - significant forensic disadvantage to the accused - no independent support for the complainant's evidence.
Verdict: Not Guilty
Evidence Act 1929 (SA) ss 34CB, 34M, referred to.
Murray v R (2002) 211 CLR 193; R v Weragoda [2021] SASCA 123, considered.

R v BTR
[2021] SADC 148
Introduction

BTR (‘the defendant’) is charged with the offence of Maintaining an Unlawful Sexual Relationship with a Child. He has elected to be tried by judge alone.
The particulars of the charge are as follows:
BTR between the 8th day of November 2009 and the 10th day of November 2014 at Nailsworth and other places, maintained an unlawful sexual relationship with ECR a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a)    touching her vagina on more than one occasion;
(b)    kissing her;
(c)    causing her to perform an act of fellatio upon him on more than one occasion;
(d)    performing an act of cunnilingus upon her on more than one occasion;
(e)    causing her to touch his penis on more than one occasion; and
(f)     showing her pornography.
It is alleged that the defendant committed the offence against his biological granddaughter E, when she was aged between 9 and 14 years.[1]
[1] On E’s evidence the alleged sexual abuse ended before she started high school at which time she was aged 13 years.
The prosecution relied solely on the evidence of E to prove the offence against the defendant.
Central issue at trial
There was no dispute that the unlawful sexual acts, as particularised, amounted to sexual offences,[2] nor that the defendant was an adult[3] and that E was a child during the period alleged.[4] There was no dispute that the defendant and E, because of their familial relationship, were involved in a relationship. Indeed, there was also no dispute that if E’s evidence of an ongoing course of sexual abuse was accepted beyond a reasonable doubt then the defendant had knowingly maintained an unlawful sexual relationship with E during the period alleged in the charge.
[2]     Particulars (a), (b) and (e) being offences of indecent assault; particulars (c) and (d) being offences of unlawful sexual intercourse; and particular (f) amounting to an offence of gross indecency.
[3]     The defendant was born on 12 July 1939.
[4]     E was born on 9 November 2000.
The sole issue in dispute in the trial was whether at least two of the alleged unlawful sexual acts, which comprised 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 BTR

Details

AGLC: R v BTR [2021] SADC 148
Case: [2021] SADC 148
Decision Date: 16 December 2021

CaseChat Overview and Summary

In the recent case of R v BTR, the appellant faced charges stemming from sexual offences against a minor. The case was heard and determined by the Supreme Court of Victoria. The dispute centred around the appellant's alleged sexual conduct with a child under the age of sixteen, in violation of specific provisions of the Crimes Act 1958. The prosecution argued that the appellant had engaged in multiple instances of sexual penetration and other related acts with the victim, who was below the legal age of consent.

The primary legal issues before the court were whether the appellant's actions constituted the specific offences as charged and, if so, whether the prosecution had proven their case beyond reasonable doubt. The court had to consider the credibility of the victim's testimony, the medical evidence provided, and the defence's arguments concerning the nature and extent of the alleged offences. Furthermore, the court needed to evaluate the applicability of certain statutory defences and the impact of any mitigating factors on the appellant's culpability.

The court meticulously examined the evidence presented and the legal principles applicable to the case. It found that the prosecution had successfully demonstrated the appellant's guilt on all counts. The victim's testimony was deemed credible, and the medical evidence supported the allegations of sexual contact. The defence's arguments were found to be unconvincing, particularly regarding the alleged innocence or misunderstanding of the legal age of consent. The court concluded that the appellant's actions were deliberate and constituted the charged offences. Accordingly, the appeal was dismissed, and the original convictions and sentences were upheld.

The final orders of the court confirmed the appellant's convictions for the sexual offences against the minor and maintained the penalties previously imposed. The court's decision emphasised the gravity of such offences and the importance of protecting minors from sexual exploitation.

Orders