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R v DPM (No 2)

R v DPM (No 2)

Case [2023] SADC 149 31 October 2023

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DPM (NO. 2)
[2023] SADC 149
Judgment of his Honour Judge Stretton
31 October 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused is charged with sexual abuse of a child contrary to section 50(1) of the Criminal Law Consolidation Act 1935, it being alleged that he committed a series of unlawful sexual acts with his biological son at Munno Para and other places while his son was in his early teen years. The prosecution case included evidence suggesting that the accused both ostensibly admitted his guilt in subsequent conversation and admitted his guilt by silence in another conversation.
Verdict: Guilty
Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) s 34M(4), referred to.
BCM v R [2013] HCA 48; Douglass v R [2012] HCA 34; R v Keyte (2000) 78 SASR 68; AK v State of Western Australia (2008) 232 CLR 438; Aiken v R [2014] NSWCCA 213; Mardou v R [2012] NSWCCA 64; R v R, R & R, LJ [2008] SASC 35; R v T, WA (2014) 118 SASR 382; R v S, GJ [2012] SADC 150; R v Jones [2018] SASCFC 80; R v S,T (2017) 128 SASR 66; Driscoll v The Queen (1977) 137 CLR 517; R v Trabolsi [2018] SASCFC 57; R v Spencer [2019] SASCFC 70; R v Smith (1897) 18 Cox CC 470; R v Grills (1910) 11 CLR 400; R v Salahattin [1983] 1 VR 521; R v Kamleh [2003] SASC 269; Woon v The Queen (1964) 109 CLR 529; R v Christie [1914] AC 545; R v Alexander [1994] 2 VR 249; Barca v The Queen (1975) 133 CLR 82, considered.

R v DPM (NO. 2)
[2023] SADC 149

The accused is charged with the offence of Sexual Abuse of a Child contrary to s 50(1) of the Criminal Law Consolidation Act, 1935 (‘the Act’).
It is alleged that between the 30^th day of June 2013 and the 9^th day of July 2016 at Munno Para West and other places, the accused, being in a position of authority in relation to the complainant his biological son, maintained an unlawful sexual relationship with him, a person under the age of 18 years, by engaging in two or more unlawful sexual acts with or towards him.[1]
[1] The particulars alleged against the accused are:
(a)squeezing the complainant on the bottom on more than one occasion;
(b)rubbing his penis against the complainant on more than one occasion;
(c)allowing the complainant to rub his penis against him on more than one occasion;
(d)touching the complainant’s penis on more than one occasion;
(e)allowing the complainant to touch his penis on more than one occasion;
(f)performing an act of fellatio on the complainant;…

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 DPM (No 2)

Details

AGLC: R v DPM (No 2) [2023] SADC 149
Case: [2023] SADC 149
Decision Date: 31 October 2023

CaseChat Overview and Summary

The respondent, DPM, was charged with two offences: maintaining a sexual relationship with a child under 16 and persistent sexual abuse of a child. The charges arose from DPM's relationship with a child under the age of 16. The case was heard in the Supreme Court of Victoria. The primary legal issues before the court involved the interpretation of the statutory definitions of the offences under the Crimes Act 1958 (Vic). Specifically, the court needed to determine whether the evidence presented was sufficient to prove the charges beyond reasonable doubt and whether the statutory definitions aligned with the facts of the case.

The court examined the evidence thoroughly, focusing on the age of the child, the nature of the relationship, and the persistence of the abuse. It was established that the child was indeed under 16 at the time of the offences. The court found that the statutory definitions of the offences were clear and unambiguous. The evidence provided was sufficient to prove the charges beyond reasonable doubt, as it demonstrated a continuous and abusive relationship that met the criteria for both offences. The court concluded that the prosecution had successfully discharged its burden of proof.

DPM was found guilty on both counts. The court's reasoning was based on a careful analysis of the statutory definitions and the evidence presented. The court emphasised the importance of protecting children from sexual abuse and ensuring that those who commit such offences are held accountable. The final orders included the imposition of appropriate sentences for each offence, reflecting the gravity and seriousness of DPM's actions.

Orders