R v H, JH

[2022] SADC 11

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v H, JH

Criminal Trial by Judge Alone

[2022] SADC 11

Judgment of his Honour Judge Stretton 

3 February 2022

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 maintaining an unlawful sexual relationship with a child - the accused is the de-facto partner of the complainant's eldest sister - the complainant gave evidence by way of prescribed interviews and a pre-trial special hearing. The accused did not give evidence. The complainant was an honest and reliable witness whose evidence should be accepted beyond reasonable doubt.

It is proven that on 9-10 occasions the accused digitally touched the complainant's vagina in circumstances amounting to an unlawful act for the purposes of the charged offence. The offence is proven beyond reasonable doubt.

Verdict: Guilty

Criminal Law Consolidation Act 1935 (SA) s 50; Evidence Act 1929 (SA) 12AB, referred to.
R v Mann [2020] SASCFC 69; BCM v The Queen [2013] HCA 48; Douglass v The Queen [2012] HCA 34; R v Keyte (2000) 78 SASR 68; AK v State of 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; R v S, GJ [2012] SADC 150, considered.

R v H, JH
[2022] SADC 11

1. The accused JHH is charged with maintaining an unlawful sexual relationship with the complainant. The accused is the de-facto partner of the complainant’s eldest sister.

   The alleged offence

2. The accused is charged on Information dated 27 November 2020 that between the 1^st day of January 2019 and the 15^th day of January 2020 at Elizabeth Vale and Salisbury East, he maintained an unlawful sexual relationship with (the named complainant), a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely touching her vagina on more than one occasion.

   Elements of the offence

3. The elements of the offence of maintaining an unlawful sexual relationship with a child are:

   ·That the accused knowingly maintained a relationship with the complainant. While there must be more to the relationship than the alleged sexual acts, evidence of unlawful sexual acts can be considered when deciding whether a relationship has been proved. The existence of a relationship is a question of fact.[1] Familial and de-facto relationships can constitute relationships for the purpose of the offence.[2]

   ·That during that relationship, the accused engaged in two or more unlawful sexual acts with the complainant. An unlawful sexual act is an act that constitutes[3] a sexual offence. Sexual offence is defined to include indecent assault. An indecent assault is the intentional and unlawful application of force by an accused to a complainant without the consent of the complainant, the accused…