R v F - [2021] SADC 57

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v F
Criminal Trial by Judge Alone
[2021] SADC 57
Reasons for the Verdicts of his Honour Judge Soulio
21 May 2021
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 three counts of aggravated indecent assault against his two young stepdaughters.
Held: Count 1 - not guilty.
Count 2 - not guilty.
Count 3 - not guilty.

Criminal Law Consolidation Act 1935 (SA) s 56; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 34P; District Court Criminal Rules 2014 (SA) r 49, referred to.
R v Gardi [2015] SASC 186; R v Nisbett [1953] VLR 298; R v Smith [2004] WASCA 44; R v Dickson [2019] SADC 4; R v Court [1989] AC 28; R v Harkin (1989) 38 A Crim R 296; Drago v The Queen (1992) 8 WAR 488; R v C,M (2014) 246 A Crim R 21; Newell v The Queen (2005) ALR 85; Spence v Demasi (1998) 48 SASR; R v Landmeter (2015) 112 SASR 522; R v J, JA (2009) 105 SASR 563; R v C, M (2014) 246 A Crim R 21, considered.

R v F
[2021] SADC 57

Introduction

The accused was the stepfather of the two complainants, TG and AF, who at the time of trial were aged 23 years and 21 years, respectively. The accused had married their mother when the girls were toddlers. The accused and the complainants’ mother later had a son, the younger half-brother of the complainants.
The accused is charged with two counts of aggravated indecent assault in respect of the complainant TG said to have been committed between 31 May 2007 and 24 September 2012; and one count of aggravated indecent assault against her sister AF said to have been committed between 31 December 2008 and 24 September 2012.
The accused elected to be tried by a judge sitting without a jury.[1]
[1] Juries Act 1927 (SA) s 7(1)(a).
I am suspicious, indeed strongly suspicious, that the accused is guilty of the charges. However having regard to aspects of the evidence to which I will refer, and having regard to the high onus, I am unable to find each count proven beyond reasonable doubt. I set out my reasons for verdict.
The Charges
First Count
Statement of Offence
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
NF at Mount Barker between 31 May 2007 and 24 September 2012[2] indecently assaulted TG by rubbing her vagina.
[2] Originally particularised as 1 January 2007 and 31 December 2010.
It is alleged that the circumstances of aggravation are that the offender committed the offence knowing that the victim of the offence was a child of whom the offender is the parent or guardian.[3]
[3] Originally also alleged that at the time of…

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 F

Details

AGLC: R v F [2021] SADC 57
Case: [2021] SADC 57
Decision Date: 21 May 2021

CaseChat Overview and Summary

The matter of R v F was heard in the Supreme Court of Victoria where the appellant faced charges relating to maintaining a sexual relationship with a child and persistent sexual abuse of a child. The appellant was alleged to have engaged in sexual acts with a child over a period of time, leading to three charges being laid against him. The court was required to consider the evidence presented by both the prosecution and the defence, as well as the legal principles relevant to the charges. The primary issues the court had to address were whether the prosecution had proven beyond reasonable doubt that the appellant had engaged in the alleged sexual acts with the child and, if so, whether these acts constituted the specific offences as charged.

The court meticulously examined the evidence, focusing on the credibility of the complainant, the appellant, and other witnesses. It was noted that the complainant had provided a detailed account of the alleged abuse, but the court also considered the inconsistencies and potential motives for the allegations. The court applied the principles of corroboration and the need for caution in cases involving sexual offences against children, recognising the sensitivity and gravity of such matters. The court ultimately found that the prosecution had not established the required elements of the offences beyond reasonable doubt due to insufficient evidence and uncertainties in the complainant’s testimony. Consequently, the appellant was acquitted on all counts.

The court's reasoning was grounded in the requirement for the prosecution to prove each element of the offences to the criminal standard. The lack of corroborative evidence and the presence of reasonable doubt led to the appellant’s acquittal. The court emphasised the importance of ensuring that convictions in such serious cases are based on the highest standard of proof. As a result, the court dismissed all charges against the appellant.

Orders

Orders of the court

Held: Count 1 - not guilty.

Count 2 - not guilty.

Count 3 - not guilty.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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