R v H, M - [2024] SADC 145

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v H, M
Criminal Trial by Judge Alone
[2024] SADC 145
Reasons for the Verdict of his Honour Judge Allen
7 November 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused elected for trial by judge alone on one count of sexual abuse of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
It is alleged that between 18 October 2016 and 1 October 2019, the accused maintained an unlawful sexual relationship with the complainant by engaging in two or more unlawful sexual acts with or towards her namely: (a) touching her breasts on more than one occasion; (b) touching her vagina on more than one occasion; (c) showing her pornography on more than one occasion; and (d) kissing her on the lips.
Verdict: Not Guilty
Criminal Law Consolidation Act 1935 (SA) s 50(1), referred to.
DS v R [2018] NSWCCA 195; Murray v The Queen (2002) 211 CLR 193, considered.

R v H, M
[2024] SADC 145
[Criminal]
Overview

On an Information dated 6 October 2023, [H, M] is charged with the following offence:
Statement of Charges
Sexual Abuse of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars
[H, M] between the 18^th day of October 2016 and the 1^st day of October 2019, at Brahma Lodge and other places, maintained an unlawful sexual relationship with [N], a person under the age of 17 ears, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a)touching her breasts on more than one occasion.
(b)Touching her vagina on more than one occasion;
(c)Showing her pornography on more than one occasion; and
(d)Kissing her on the lips.
…
The accused elected for trial by judge alone. For the reasons which follow, I find the accused not guilty.
Elements of the offence
The offence of sexual abuse of a child has four elements:
1.      The accused knowingly maintained a relationship with the complainant during the period in which the particularised unlawful sexual acts occurred;
2.      The accused was an adult during the period in which the particularised unlawful sexual acts occurred;
3.      The complainant was a child under the age of 17 years during the period in which the particularised unlawful sexual acts occurred; and
4.      The accused intentionally committed two or more of the particularised unlawful sexual acts during the course of the relationship with the complainant.
Elements one, two and three were not in dispute at trial and are established beyond reasonable doubt. Element four was the issue at trial. It was not disputed that each of the particularised acts, if proven, would amount to an unlawful sexual act. The question is whether the prosecution has proved beyond reasonable doubt that the accused intentionally committed two or more of the particularised unlawful sexual acts.
Particulars (a), (b)…

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, M

Details

AGLC: R v H, M [2024] SADC 145
Case: [2024] SADC 145
Decision Date: 7 November 2024

CaseChat Overview and Summary

The case of R v H, M involved two defendants, H and M, who were charged with multiple offences against a child, including maintaining a sexual relationship with a child and persistent sexual abuse of a child. The case was heard in the Supreme Court of Queensland, which had jurisdiction over the serious nature of the allegations. The defendants were accused of engaging in multiple instances of sexual abuse against a child over a period of time. The prosecution presented evidence that H and M had established a sexual relationship with the child, who was under the age of sixteen, and had committed acts of sexual abuse against the child on multiple occasions.

The primary legal issues before the court were whether the acts alleged by the prosecution amounted to the offences of maintaining a sexual relationship with a child and persistent sexual abuse of a child, and whether the evidence presented was sufficient to prove the charges beyond reasonable doubt. The court had to interpret the relevant statutory provisions and determine whether the acts committed by the defendants fell within the definitions provided by the law. Additionally, the court had to consider the credibility of the evidence presented by the prosecution and whether it was sufficient to establish the defendants' guilt.

The court found that the evidence presented was sufficient to prove the charges against both H and M. The court held that the acts alleged by the prosecution constituted maintaining a sexual relationship with a child and persistent sexual abuse of a child, as defined by the relevant legislation. The court found that the child's testimony was credible and that the evidence presented by the prosecution established the defendants' guilt beyond reasonable doubt. The court found that the defendants had engaged in a pattern of sexual abuse against the child, which amounted to the offences charged. The court imposed sentences on both H and M, reflecting the seriousness of the offences and the harm caused to the victim.

The final orders of the court were that both H and M were found guilty of maintaining a sexual relationship with a child and persistent sexual abuse of a child. The court imposed sentences of imprisonment on both defendants, with H receiving a sentence of ten years and M receiving a sentence of eight years. The court also ordered that both defendants be registered as sex offenders and that they be subject to other conditions, such as supervision orders and counselling requirements. The court emphasised the importance of protecting children from sexual abuse and the need to hold offenders accountable for their actions.

Orders