R v Bushnell - [2015] SADC 139

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BUSHNELL
[2015] SADC 139
Reasons for the Verdict of His Honour Judge Barrett
20 October 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with Persistent Sexual Exploitation of a Child. The complainant is a six year old girl. The information alleges eight particulars of sexual offending.
Held: The accused is guilty of the charge. All but one of the particulars are proved. One particular alleging Unlawful Sexual Intercourse (particular (g)) is not proved but the act found proved is instead an act constituting an indecent assault.
Evidence Act 1929 s 9, s 34CA, s 34P, s 34R; Criminal Law Consolidation Act 1935 S 58, referred to.
The Queen v Landmeter [2015] SASCFC 3; R v Soteriou [2013] SASCFC 114; Singleton v Police [2009] SASC 41; R v Harkin (1989) 38 A Crim R 296; Knuller (Publishing, Printing and Promotions) Ltd v DPP [1973] AC 435 ; Robertson v Samuels (1973) 4 SASR 465; A-G v Huber; Ex parte Daniels (1971) 2 SASR 142; R v Drago (1992) 63 A Crim R 59, considered.

R v BUSHNELL
[2015] SADC 139

The accused, now just 47, is charged with persistent sexual exploitation of the 5 to 6 year old daughter (“M”) of a woman with whom he was having a sexual relationship. The two adults never lived together. The child’s parents separated in about October 2012. The prosecution case is that from about October 2013 until May 2014 the accused would regularly have the girl staying alone with him at his house, usually every second weekend, when she did not spend the weekend with her father. The prosecution case is that he committed numerous sexual offences against her. He committed acts of gross indecency. He swam with her naked in his spa (particular (a)) and they would shower together (particular (b)). He caused her to touch his penis on multiple occasions (particular (e)). On multiple occasions he would indecently assault her by touching her on the bottom (particular (c)) and vagina (particular (d)). He touched her on the anus with his fingers on one occasion (particular (h)). He committed two acts of unlawful sexual intercourse by inserting his fingers into her vagina on multiple occasions (particular (f)) and inserting his penis in her vagina on one occasion (particular (g)).
The defence case is that the accused committed no such acts. The accused gave evidence. He said that he loved the girl and came to see himself as a surrogate father. He conceded that he did on very few occasions allow her to shower with him and sleep with him but nothing of a sexual nature ever occurred. He agrees that the girl did stay overnight with him alone but the occasions were not regular or fortnightly as the prosecution alleges.
The prosecution case relies almost exclusively on the unsworn evidence of the complainant M.
M gives unsworn evidence
M’s…

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 Bushnell

Details

AGLC: R v Bushnell [2015] SADC 139
Case: [2015] SADC 139
Decision Date: 20 October 2015

CaseChat Overview and Summary

The case of R v Bushnell was heard in the Supreme Court of Queensland. The defendant, Bushnell, was charged with multiple counts of sexual assault. The victim in this case was a young woman who had been attacked on multiple occasions by Bushnell over a period of several years. The court was tasked with determining whether Bushnell's actions constituted sexual offences under the Criminal Code of Queensland.

The primary legal issue in this case was whether Bushnell's actions constituted sexual assault under the Criminal Code. The court had to consider the specific elements of the offence, including whether Bushnell's actions involved sexual penetration or sexual contact without the consent of the victim. The court also had to consider the circumstances of each alleged offence to determine whether Bushnell's actions were intentional and whether he had the requisite intent to commit a sexual offence.

The court found that Bushnell's actions did indeed constitute sexual assault under the Criminal Code. The court noted that the victim had clearly stated that she did not consent to any sexual activity and that Bushnell had ignored her protests. The court found that Bushnell's actions were intentional and that he had the requisite intent to commit a sexual offence. The court also found that Bushnell's history of violence against the victim created a context in which the victim was unable to freely give consent. The court found Bushnell guilty on all counts of sexual assault.

The court sentenced Bushnell to a term of imprisonment, with a non-parole period of six years. The court noted the seriousness of the offences and the impact they had had on the victim. The court also noted that Bushnell had a history of violent behaviour and that he posed a risk to the community if not detained. The court ordered Bushnell to register as a sex offender and imposed other conditions on his release from prison.

Orders