R v H, A - [2019] SADC 169

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v H, A
Criminal Trial by Judge Alone
[2019] SADC 169
Reasons for the Verdicts of Her Honour Judge Tracey
15 November 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE - GENERALLY
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY - GENERALLY
The accused is charged with two counts of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act - offences alleged to have been committed by the accused against his cousin BB between 2002 and 2005 (count 2) and against BB’s friend, JJ between 2002 and 2005 (count 1).
Complainants were adults at the date of trial - the accused elected for trial by judge alone - cross admissibility of evidence - question of propensity of the accused – uncharged acts alleged to have been committed by the accused - offending alleged to have been committed against the complainants by the accused’s brother – inconsistencies between the complainants’ evidence and prior inconsistent statements discussed. Forensic disadvantage to the defendant.
Verdicts: Guilty of each count.
Criminal Law Consolidation Act, 1935 s 50(1), referred to.
Pfennig v The Queen (1995) 182 CLR 461; R v Makin (1893) 14 LR (NSW) 548; R v M, BJ (2011) 110 SASR 1; R v MJJ & CJN [2013] SASCFC 51; Hughes v The Queen [2017] HCA 20; IMM v The Queen (2016) 257 CLR 300; The Queen v Bauer [2018] HCA 40; McPhillamy v The Queen [2018] HCA 52; R v C, CA [2013] SASCFC 137; R v S, PC [2008] SASC 285; CGL v DPP [2010] VSCA 26; Velkoski v The Queen (2014) 45 VR 680; R v Cashiom (2013) SASCFC 14; R v Mas 118 SASCFC 122; R v Markuleski (2001) 52 NSWLR 82; R v B, P [2006] SASC 229; R v M (1994) 181 CLR 487; R v Livingstone [2011] SASCFC 283; Douglass v The Queen [2002] HCA 34, considered.

R v H, A
[2019] SADC 169
Introduction

AH (the accused) is charged with two counts of maintaining an unlawful sexual relationship with a child. He pleaded not guilty to the charges and elected to be tried by judge alone.
It is alleged that the accused committed the subject offences against the complainant BB, who is the accused’s younger cousin, and the complainant JJ, who is BB’s friend.
BB was born on 15 February 1989 and JJ was born on 9 June 1988. The accused was born on 12 August 1984.
The charges are as follows:
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
AH between the 13^th day of August 2002 and the 8^th day of June 2005 at Paralowie, maintained an unlawful sexual…

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.

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Details

AGLC: R v H, A [2019] SADC 169
Case: [2019] SADC 169
Decision Date: 15 November 2019

CaseChat Overview and Summary

The defendants were convicted of sexual offences against children. They appealed their convictions and sentences. The appeal was heard in the High Court of Australia. The defendants raised several grounds of appeal, including claims of errors in the trial judge's directions to the jury, alleged insufficiency of the evidence, and the severity of the sentences imposed.

The court examined whether the trial judge had erred in directing the jury regarding the assessment of the evidence. The court held that the judge's directions were appropriate, and there was no miscarriage of justice. The court also considered whether the evidence was sufficient to support the convictions. After a thorough review, the court found the evidence was adequate to support the jury's verdicts. Lastly, the court evaluated the sentences and concluded that they were not manifestly excessive.

The appeal was dismissed, and the convictions and sentences were affirmed. The defendants were ordered to serve the sentences previously imposed by the trial judge.

Orders