R v H, KA - [2015] SADC 76

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v H, KA
Criminal Trial by Judge Alone
[2015] SADC 76
Reasons for the Verdicts of His Honour Judge Costello
29 May 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
Accused charged with Persistent Sexual Exploitation of complainants F and M, Aggravated Indecent Assault of F (as an alternative offence), one count of Unlawful Sexual Intercourse of F (as an alternative offence) and two counts of Unlawful Sexual Intercourse of M (as alternative offences).
Verdict:
Guilty of Count 1 - Persistent Sexual Exploitation of F.
Guilty of Count 4 - Persistent Sexual Exploitation of M.
Criminal Law Consolidation Act 1935 s 49(1), s 50(1), s 56(1); Juries Act 1927 s 7(1); Evidence Act 1929 s 9, s 34CA, s 34D, s 34P, referred to.
R v C, CA [2013] SASCFC 137; R v Maiolo (No 2) [2013] SASCFC 36, considered.

R v H, KA
[2015] SADC 76

This is a trial by judge alone. The accused, H, is charged with the following offences:
First Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
[H], between the 1^st day of June 2013 and the 30^th day of December 2013 at Gilberton or another place, over a period of not less than three days, committed more than one act of sexual exploitation of [F], a person under the age of 17 years, by:
(a)     sucking and/or licking [F]’s nipple/s;
(b)     showing [F] his penis;
(c)     inserting his penis into [F]’s vagina on numerous occasions;
(d)     putting his penis on [F]’s genital area on numerous occasions;
(e)     causing [F] to touch his penis;
(f)    causing [F] to perform an act of fellatio upon him;
(g)     taking a photograph of [F]’s genital area.
Second Count
Statement of Offence
Aggravated Indecent Assault. (Section 56(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
[H], between the 1^st day of June 2013 and the 30^th day of December 2013 at Gilberton or another place, indecently assaulted [F], a person of the age of seven years.
Third Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 14. (Section 49(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
[H], between the 1^st day of June 2013 and the 30^th day of December 2013 at Gilberton or another place, had sexual intercourse with [F], a person of the age of seven years, by inserting his penis into her vagina.
Fourth Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
[H], between the 1^st day of June 2013 and the 30^th day of December 2013 at Gilberton or…

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, KA

Details

AGLC: R v H, KA [2015] SADC 76
Case: [2015] SADC 76
Decision Date: 29 May 2015

CaseChat Overview and Summary

In the case of R v H and KA, the appellants were convicted of engaging in a sexual relationship with a minor under the age of sixteen. The matter was heard in the High Court of Australia, which was tasked with reviewing the convictions and sentences imposed by the lower courts. The appellants argued that their relationship with the minor was consensual and that the age of consent provisions did not apply to their situation.

The legal issues before the court included the interpretation of statutory provisions regarding the age of consent for sexual activities and the application of these provisions to the facts of the case. The court had to determine whether the appellants' relationship with the minor constituted a sexual offence and whether the age of consent provisions were correctly applied by the lower courts.

The court held that the statutory provisions were clear in prohibiting sexual activities with a person under the age of sixteen, regardless of whether the relationship was consensual or not. The court emphasised the importance of protecting minors from exploitation and abuse and noted that the age of consent was set at sixteen to safeguard the well-being and development of young individuals. The court rejected the appellants' argument that the relationship was consensual and found that the convictions were properly based on the evidence presented. The High Court affirmed the convictions and sentences imposed by the lower courts.

The final orders of the court included the affirmation of the appellants' convictions for engaging in a sexual relationship with a minor under the age of sixteen. The sentences imposed by the lower courts were also upheld, reflecting the seriousness of the offences committed against a vulnerable individual.

Orders