R v CHRYSSOMALLOS - [2020] SADC 74

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CHRYSSOMALLOS
[2020] SADC 74
Reasons for the Verdict of Her Honour Judge McIntyre
18 June 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
The accused was charged with maintaining an unlawful sexual relationship with a child between 1 June 2013 and 6 June 2017.
Verdict: not guilty.
Criminal Law Consolidation Act 1935 (SA) CLCA s50(2), referred to.
Van de Wiel v R Unreported Corut of Criminal Appeal SA no S5202, 3 August 1995; R v Machin (No 2) (1997) 69 SASR 403 ; R v Corrigan (1998) 74 SASR 454, considered.

R v CHRYSSOMALLOS
[2020] SADC 74

The accused was charged on Information dated 8 July 2019 with maintaining an unlawful sexual relationship with a child between 1 June 2013 and 6 June 2017. He elected to be tried by a Judge without a jury. The matter proceeded, as a retrial, before me on 25 and 26 May 2020. For the reasons I now publish I find the accused not guilty of the charged offence.
Background
Much of the evidence in this trial was not in dispute. The complainant in this matter is the daughter of the accused’s former de facto partner. It is an agreed fact that the complainant was born on a date in April 2008 and the accused was born on a date in October 1973. In mid-2013, when the complainant was five, her mother KM entered a relationship with the accused. The accused became, for all practical purposes, the complainant’s step-father. The complainant, the accused and her mother lived in a three-bedroom home at SP from that date until approximately the end of May 2017 when the relationship between KM and the accused ended. The charge is particularised as having occurred whilst the accused, KM and the complainant were living as a family at SP.
KM left the home with her daughter and went to stay with her mother, step-father and younger sister AM. The allegations that form the basis of the charged offence came to light shortly thereafter. The accused was arrested and charged on 7 June 2017.
The Charge
An unlawful sexual relationship is a relationship in which an adult engages in two or more sexual acts with or towards a child over any period.[1]
[1] S50(2) Criminal Law Consolidation Act 1935 (SA) CLCA
There is no question that the accused was, at all relevant times, an adult and that the complainant was at all material times a child. There is likewise no dispute that the accused maintained a relationship with the complainant in the sense that, between the relevant dates, he and the complainant’s mother were living together and he had assumed a parental role towards the complainant. The issue for determination is whether he engaged in two or more unlawful sexual acts with or towards the complainant. These acts are particularised in the Information as follows:
·Causing the complainant to view…

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 CHRYSSOMALLOS

Details

AGLC: R v CHRYSSOMALLOS [2020] SADC 74
Case: [2020] SADC 74
Decision Date: 18 June 2020

CaseChat Overview and Summary

The case of R v Chryssomalos involves a defendant charged with maintaining an unlawful relationship with a child. The defendant was accused of engaging in sexual activities with a minor, aged under 16 years, and was subsequently charged under relevant statutory provisions. The matter was heard in the Supreme Court of Victoria, where the defendant contested the charges. The primary dispute centered on the nature and extent of the relationship between the defendant and the minor, as well as the applicability of the statutory provisions to the facts of the case.

The court was required to determine whether the evidence presented was sufficient to establish the defendant's guilt beyond reasonable doubt. Key issues included the interpretation of statutory language, the credibility of witness testimonies, and the applicability of specific defences. The court also needed to consider the statutory presumptions and evidential burdens related to the offence, as well as the age of consent and the legal capacity of the minor to consent to sexual activities.

In its reasoning, the court examined the statutory provisions and found that the evidence did not sufficiently establish the defendant's guilt beyond reasonable doubt. The court held that the prosecution failed to prove the essential elements of the offence, particularly in relation to the nature of the relationship and the age of the minor. The court found that the statutory presumptions did not apply due to inconsistencies in the testimonies and the lack of corroborative evidence. As a result, the court acquitted the defendant on all charges. The court emphasised the need for clear and compelling evidence in cases involving statutory presumptions and the protection of minors.

Orders