R v H, CS - [2016] SADC 23

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v H, C S
Criminal Trial by Judge Alone
[2016] SADC 23
Reasons for the Verdicts of His Honour Judge Stretton
15 March 2016
CRIMINAL LAW
The accused was charged with 9 counts of sexual offending and one count of aggravated assault of his step-daughter over several years while the complainant was between the ages of 11 and 15. Eventually the complainant ran away from home, later moving in with her boyfriend, and after an apparent nightmare disclosed the alleged abuse. The complainant was 20 at the time of trial. The prosecution case depended entirely on the evidence of the complainant. The accused gave evidence at trial denying the charges and called other evidence.
Held: The charges against the accused are proven beyond reasonable doubt.
Criminal Law Consolidation Act 1935 ss5AA(g), 20(3), 49(1), 49(3), 56, 56(2) and 58; Evidence Act 1929 ss18, 34L, 34P, 34R and 34Q, referred to.
BCM v R [2013] HCA 48; Douglass v R [2012] HCA 36; R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; Aiken v R [2014] NSWCCA 213; Markou v R [2012] NSWCCA 64; R v R, R & R, LJ [2008] SASC 35; R v T, WA [2014] 118 SASR 382; R v C, G [2013] SASCFC 83; R v C [2013] SASCFC 137; R v C, M [2014] SASCFC 116, considered.

R v H, C S
[2016] SADC 23

The accused C S H is charged with sexual and other offending against his step-daughter the complainant.
Overview
The complainant was born in April 1995. Her parents had a rocky relationship and separated when she was about five years of age. Her mother retained custody of the children.
Not long after that, the complainant’s mother formed a relationship with the accused. The complainant’s mother together with the complainant and the complainant’s brother moved into the accused’s Taperoo house.
The accused readily undertook the role of father to the two children, who called him ‘dad’ from the outset. It is clear the accused formed a good relationship with and was popular and liked by both the complainant and her brother.
On the other hand, the complainant and her mother did not enjoy a good relationship. There was often conflict. There is little dispute that theirs was not a close relationship and that the complainant was shown limited love and affection by her mother.
Over time the new family moved between several addresses.
At the age of 15 the complainant ran away from home, initially living with her adult sister, then her biological father, before forming a relationship and then moving in with her current partner J, and having their first child. The complainant is now 20 years old.
About a year into that relationship, when J asked her about her disturbed sleeping, the complainant told him that she had not had the best upbringing with the accused, having…

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 H, CS

Details

AGLC: R v H, CS [2016] SADC 23
Case: [2016] SADC 23
Decision Date: 15 March 2016

CaseChat Overview and Summary

The accused was charged with 9 counts of sexual offending and one count of aggravated assault of his step-daughter over several years while the complainant was between the ages of 11 and 15. The prosecution case depended entirely on the evidence of the complainant. The accused gave evidence at trial denying the charges and called other evidence. The court held that the charges against the accused are proven beyond reasonable doubt. The court found that the complainant's evidence was compelling and credible, and that the accused's evidence was not convincing. The accused's witnesses were also found to be unreliable. The court found the complainant's evidence to be a compelling and credible account of events that would be nearly impossible to fabricate and maintain in the intricate, detailed, varied and personally unflattering form that it took.

Orders