R v G, AP - [2013] SADC 90

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v G, AP
Criminal Trial by Judge Alone
[2013] SADC 90
Reasons for the Verdict of Her Honour Judge Davison
5 July 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone.
Accused charged with one count of persistent sexual exploitation of his biological daughter.
Verdict: Guilty
Criminal Law Consolidation Act 1935 (SA) s 50(1), s 58; Evidence Act 1929 (SA) s 9, s 34CA, s 34CA(3), s 34D, s 34M, s 34P, referred to.
Douglass v R [2012] HCA 34, considered.

R v G, AP
[2013] SADC 90
Background

The accused is charged with one count of persistent sexual exploitation of a child. The child in question is his natural daughter EG. She was born to MC and AG on the 21 June 2002. When she was born they lived in a house at North Haven. On the 14 February 2011 the family moved to Victor Harbor where they resided together until 21 April 2012. The sexual activity that is the subject of the charge is alleged to have commenced whilst they were living at North Haven and then continued when they moved to Victor Harbor.
The Charge
Statement of Offence
Persistent Sexual Exploitation of a Child (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
AG over a period of not less than three days between the 3^rd day of August 2010 and the 22^nd day of April 2012 at North Haven and Victor Harbor, committed more than one act of sexual exploitation of EG, a child under the age of 17 years by touching EG’s breasts, touching EG’s vagina, causing EG to touch his penis, causing EG to lick his penis, licking EG’s vagina, showing EG pornography, attempting to insert his penis into EG’s vagina, and causing EG to punch his testicles and touching his penis in her presence.
The Trial
The trial proceeded as trial by judge alone. The prosecution presented a notice pursuant to s34P of the Evidence Act 1929. I was asked to rule in relation to the leading of evidence from a witness named HC. I permitted the prosecution to lead the evidence and delivered reasons for that decision. I will address that evidence in the course of these reasons.
General Directions
The accused comes into this Court with a presumption of innocence in his favour. The law regards him as innocent unless his guilt has been proven beyond reasonable doubt. The prosecution bears the burden of proof. The charge must be proven beyond reasonable doubt. The accused does not carry any onus of proof and to the extent that he did put forward a defence he does not have to prove it. It is not sufficient for the prosecution to show a suspicion of guilt or event to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with…

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 G, AP

Details

AGLC: R v G, AP [2013] SADC 90
Case: [2013] SADC 90
Decision Date: 5 July 2013

CaseChat Overview and Summary

In the case of R v G, AP, the defendant faced criminal charges arising from incidents of sexual assault. The case was heard by the Supreme Court of Victoria, where the defendant contested allegations of non-consensual sexual acts. The prosecution alleged that the defendant had committed these offences against a victim, and the case hinged on the testimonies of the victim and the defendant, as well as other witnesses.

The legal issues before the court included whether the prosecution had proven beyond reasonable doubt that the defendant had committed the acts of sexual assault, and whether the defendant's defence of consent was substantiated. The court had to carefully evaluate the credibility of the evidence presented, particularly the testimonies of the victim and the defendant. The court also needed to consider the legal principles surrounding consent in sexual offences and the burden of proof required for the prosecution to secure a conviction.

The court, in its deliberation, found that the prosecution had successfully demonstrated that the defendant had engaged in non-consensual sexual acts. The testimony of the victim was deemed credible, and the court found that the defendant's defence of consent was not supported by the evidence. The court emphasised the importance of the victim's testimony and the consistency of the evidence presented. Consequently, the court found the defendant guilty of the charges. The defendant was subsequently sentenced according to the provisions of the Crimes Act 1958 (Vic).

The court ordered that the defendant be punished with a term of imprisonment and also mandated that the defendant be placed on the sex offenders register. The judgment highlighted the seriousness of sexual offences and the court's commitment to protecting victims and ensuring justice is served. The final orders included the imposition of a custodial sentence and the requirement for the defendant to comply with the conditions of the sex offenders register.

Orders