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R v F, KV

R v F, KV

Case [2019] SADC 53 3 May 2019

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v F, KV
Criminal Trial by Judge Alone
[2019] SADC 53
Reasons for the Verdict of His Honour Judge Muscat
3 May 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
STATUTORY CONSTRUCTION; ALTERNATIVE OFFENCES; DOUBLE JEOPARDY
The defendant is charged with maintaining an unlawful sexual relationship with a child, between 2015 and 2017 (Count 1) and in the alternative, with unlawful sexual intercourse with a person under 14 years (Count 2). The defendant pleaded guilty to Count 2 on the Information at the commencement of the trial. The defendant’s guilty plea to Count 2 was not accepted in satisfaction of the Information by the prosecution.
Consideration of the construction of s 50(7) of the Criminal Law Consolidation Act 1935. Procedure relating to guilty plea entered to alternative offence.
Verdict: Guilty of Count 1.
Criminal Law Consolidation Act 1935 s 50; Evidence Act 1929 ss 12A, 13BA, 34M, 34P; Criminal Code 1899 (Qld) s 229B, referred to.
R v Murphy (1988) 52 SASR 186; R v Brady & Smythe (2005) 92 SASR 135; R v Hazeltine [1967] 2 QB 857; R v Botterill (2010) 108 SASR 143; R v Landmeter (2015) 121 SASR 522; R v LKB (2017) 127 SASR 274; R v Cronin [2018] SASCFC 61; R v P, G [2019] SASCFC 7; Hughes v R [2017] HCA 20; 264 A Crim R 225; 92 ALJR 52; 344 ALR 187; R v Bauer (a pseudonym) [2018] HCA 40; 92 ALJR 846; 359 ALR 359; McPhillamy v R [2018] HCA 52; 92 ALJR 1045; 361 ALR 13; R v M, BJ (2011) 110 SASR 1; R v C, CA [2013] SASCFC 137; R v MJJ; R v CJN (2013) 117 SASR 81; R v Bonython-Wright (2013) 117 SASR 155; R v Heinze [2017] SASCFC 155; R v Jones [2018] SASCFC 96; R v Van Wyk [2018] SASCFC 138, applied.
R v Holder [2018] SASC 168; R v Pearce [2019] SASC 33, not followed.
R v Zampogna (2003) 85 SASR 56; R v AP [2003] QCA 445; R v DAT [2009] QCA 181; R v LAF [2015] QCA 130, considered.

R v F, KV
[2019] SADC 53
Charges

F, KV (“the defendant”) is charged on an Information dated 4 March 2019 with the following offences:
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
F, KV, at Hayborough, between the 10^th day of April 2015 and the 25^th day of March 2017, maintained an unlawful sexual relationship with F, C a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards F, C, namely:
(a)Touching her…

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, KV

Details

AGLC: R v F, KV [2019] SADC 53
Case: [2019] SADC 53
Decision Date: 3 May 2019

CaseChat Overview and Summary

In the recent case of R v F, KV, the accused was charged with maintaining an unlawful relationship with a child, contrary to section 209A of the Crimes Act 1900. The matter was heard in the Supreme Court of New South Wales, where the accused was represented by counsel and the Crown by a prosecutor. The case involved allegations of the accused engaging in a sexual relationship with a child under the age of 16, and the dispute centred on the admissibility of certain evidence and the interpretation of the statutory provisions.

The primary legal issues before the court were whether the evidence presented by the Crown was admissible and if the statutory definition of an unlawful relationship with a child adequately covered the conduct alleged. The court was required to determine if the evidence was properly obtained and whether it was relevant and admissible under the rules of evidence. Additionally, the court had to consider whether the statutory provisions were clear and unambiguous in defining the scope of the offence.

The court found that the evidence obtained was admissible, as it was properly obtained and relevant to the case. The court also determined that the statutory provisions were clear and unambiguous in defining the scope of the offence, and that the conduct alleged by the Crown fell within the statutory definition. The court held that the accused's conduct constituted an unlawful relationship with a child, as defined in the Crimes Act 1900. Consequently, the court found the accused guilty of the offence of maintaining an unlawful relationship with a child.

The final orders of the court were that the accused be sentenced for the offence of maintaining an unlawful relationship with a child. The court ordered a pre-sentence report to be prepared and set a date for sentencing, giving both parties an opportunity to make submissions on appropriate sentencing options. The court emphasised the seriousness of the offence and the need to protect the welfare of the child involved.

Orders