R v DT - [2023] SADC 74

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DT
Criminal Trial by Judge Alone
[2023] SADC 74
Reasons for the Verdict of his Honour Judge Press
27 June 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused DT is charged on an information dated 16 October 2020 with one count of maintaining an unlawful sexual relationship with a child and in the alternative one count of unlawful sexual intercourse with a person under 14 years.
The offending is alleged to have been committed against his biological daughter when she was 12 years old.
The accused elected for trial by judge alone.
Verdict:
Count 1- Guilty
Criminal Law Consolidation Act 1935 (SA) s 49; Criminal Law Consolidation Act 1935 (SA) s 50; Evidence Act 1929 (SA) s 29B; Evidence Act 1929 (SA) s 34P, referred to.
Godden v R [2021] SASCA 102; R v K, GA [2019] SASCFC 2; R v Zappavigna [2015] SASCFC 8, considered.

R v DT
[2023] SADC 74
Introduction

DT, the accused, elected for trial by judge alone. The Information dated 16 October 2020 was amended on the morning the trial was to commence.[1] The trial proceeded on the following counts:
[1]     The matter was listed for four to five days to commence on 26 July 2022. The trial commenced but was unable to continue on 28 July as one counsel contracted COVID. The matter was adjourned to the beginning of August but both counsel were unable to accommodate that listing. It was then adjourned to late August but again one counsel contracted COVID. There were attempts to list the matter in September but counsel were unavailable. The next available date for counsel and the court was late November. Evidence was then heard on 29 and 30 November and closing addresses occurred on 9 December 2022, T184.
First Count
Statement of Offence
Maintaining An Unlawful Sexual Relationship With A Child (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
DT between the 1^st day of July 2015 and the 31^st day of January 2016 at Brighton, Ashford or other places, maintained an unlawful sexual relationship with B, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
a)   touching his penis over his clothing in her presence;
b)   exposing and touching his penis in her presence on more than one occasion;
c)   causing or inciting her to touch his penis on more than one occasion; and
d)   inserting his penis into her vagina on more than one occasion.
This is a ‘prescribed offence’ within the meaning and for the purposes of Section 38 of the Child Safety (Prohibited Persons) Act 2016.
In the alternative to the First Count:
Second Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 14 years. (Section 49(1) of the Criminal…

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 DT

Details

AGLC: R v DT [2023] SADC 74
Case: [2023] SADC 74
Decision Date: 27 June 2023

CaseChat Overview and Summary

The case of R v DT came before the Supreme Court of Victoria, where DT was charged with maintaining a sexual relationship with a child under 16 years of age and persistent sexual abuse of a child under 16 years of age. The prosecution alleged that DT engaged in sexual acts with a child over a prolonged period. The court was tasked with determining the veracity of these allegations, assessing the credibility of the evidence presented, and evaluating the applicability of the statutory provisions under which DT was charged.

The primary legal issues the court had to address were whether the prosecution had proven beyond reasonable doubt that DT maintained a sexual relationship with the child and that this relationship constituted persistent sexual abuse. This required the court to examine the testimonies of the victim and other witnesses, as well as the medical and forensic evidence provided. The court also needed to consider the definitions and elements of the relevant offences, as outlined in the Crimes Act 1958.

The Supreme Court found that the prosecution had successfully demonstrated the elements of both charges. The victim's testimony, corroborated by other evidence, was deemed reliable and credible. The court noted the prolonged nature of the abuse and the significant impact it had on the child. The court held that the statutory provisions were applicable and that DT was guilty of the charges as laid. The court delivered its verdict and subsequently passed sentence on DT, reflecting the seriousness of the offences committed.

Orders