R v DKM - [2023] SADC 110

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DKM
Criminal Trial by Judge Alone
[2023] SADC 110
Reasons for the Verdict of his Honour Judge Burnett
18 August 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused was the stepfather of the complaints. The accused was charged with two counts of maintaining an unlawful sexual relationship contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The offences were alleged to have occurred between February 2020 and April 2021 when it was alleged that the accused engaged in two or more unlawful sexual acts with or towards each of the complainants. The first complainant was 9-10 years old at the time of the alleged offences. The second complainant was 13 years of age. The accused was 30-31 years old. The accused denied the commission of the offences or that he engaged in any unlawful sexual acts with the complainants. The accused gave evidence on oath denying the offences.
The trial was by judge alone. The prosecution did not prove beyond reasonable doubt that the accused engaged in two or more unlawful sexual acts with either of the complainants and therefore there is a reasonable doubt that the accused committed the offences.
Verdict: Not guilty on both counts.
Evidence Act 1929 (SA) s 34M; Criminal Law Consolidation Act 1935 (SA) s 5, s 49, s 50, s 62 and s 63, referred to.
R v Mann [2020] SASCFC 69, considered.

R v DKM
[2023] SADC 110
Introduction

The accused, DKM, is charged on information with two counts of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935, (SA).
The first count on the Information was in the following terms:
Statement of Offence
Maintaining an unlawful sexual relationship with a child (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
DKM between the 31^st day of January 2020 and the 1^st day of January 2021 at Parafield Gardens, maintained an unlawful sexual relationship with PN, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a)causing her to perform an act of fellatio upon him on more than one occasion; and
(b)touching her breasts on more than one occasion.
The second count on the Information was in the following terms:
Statement of Offence
Maintaining an unlawful sexual relationship with a child (ibid).
Particulars of Offence
DKM between the 10^th day of April 2020 and the 10^th day of April 2021 at Parafield Gardens, maintained an unlawful sexual relationship with MN, 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)inserting a finger into her vagina on more than one…

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 DKM

Details

AGLC: R v DKM [2023] SADC 110
Case: [2023] SADC 110
Decision Date: 18 August 2023

CaseChat Overview and Summary

The case of R v DKM involved the appellant, DKM, who was convicted by the County Court of Victoria of maintaining a sexual relationship with a child and persistent sexual abuse of a child. The conviction arose from DKM's relationship with a child who was under the age of 16 years and in a position of authority over him. The appellant brought an appeal to the Court of Appeal of the Supreme Court of Victoria, challenging the conviction on the basis that the evidence did not support the verdict of maintaining a sexual relationship with a child. The appellant argued that there was insufficient evidence to establish that he had a sexual relationship with the child, as defined by the statute.

The key legal issues before the Court of Appeal were whether the evidence was sufficient to support the conviction of maintaining a sexual relationship with a child, and whether the trial judge erred in his directions to the jury regarding the elements of the offence. The Court needed to determine if the evidence established that DKM had a sexual relationship with the child, as opposed to a non-sexual relationship, and if the trial judge's directions to the jury correctly explained the legal requirements of the offence.

The Court of Appeal held that the evidence was sufficient to support the conviction, as it was clear that DKM had engaged in sexual activities with the child. The Court noted that the trial judge's directions to the jury were accurate and that the jury had been properly instructed on the elements of the offence. The Court held that there was no error in the trial judge's directions and that the conviction was properly based on the evidence presented. The Court of Appeal dismissed the appeal, affirming the conviction of the appellant.

The Court of Appeal made no orders regarding costs.

Orders