R v H, Ma - [2011] SADC 97

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v H, MA
Criminal Trial by Judge Alone
[2011] SADC 97
Reasons for the Verdict of His Honour Judge Boylan
7 July 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with four counts of unlawful sexual intercourse - no recent complaint - a number of uncharged sexual acts - the complainant made the allegations some 10 years after the last alleged offence - plea of not guilty - trial by Judge alone - warning about forensic disadvantage - lack of specificity with respect to one of the counts.
Held: Verdicts of guilty on Counts 2, 3 and 4 and Verdict of Not Guilty on Count 1.

R v H, MA
[2011] SADC 97

MAH is charged with four counts of unlawful sexual intercourse. The prosecution alleges that he committed those offences, together with other sexual offences which are not the subject of charges, against LH some 12-13 years ago. He pleaded not guilty to the charges and, at his election, I heard the trial without a jury. I now give my reasons for the verdicts which I am about to deliver.
Outline of the Prosecution Case
LH was just 12 when the accused married her sister S. LH was then living with her mother and stepfather, M and R, C. S and the accused lived nearby and he was a regular visitor at the C family house. He worked in his family’s plumbing business.
LH alleges that, early in 1998, the accused began waiting for her after school. He would prevail upon her to get into his vehicle where he would touch her breasts and make her suck his penis. Eventually, he began having vaginal sexual intercourse with her at her mother’s and stepfather’s house. He continued to have sexual intercourse with her for some years, the last occasion of intercourse having occurred in a shed at his house on LH’s sixteenth birthday.
LH’s mother had been suspicious for some years about LH’s behaviour and confronted her about it just before LH turned seventeen. Pressed by her mother, LH admitted to sexual conduct with the accused and, at her mother’s insistence, made a report to the police. But, at that time, LH wanted no action taken. Years later, in 2010, she again spoke to the police and detectives interviewed the accused on the 4 June 2010. He denied that he had ever had any sexual contact with LH.
Warning About Forensic Disadvantage to the Accused
The prosecution case depends almost completely upon the evidence of LH. There is little independent support for her allegations. Moreover, as I have said, she delayed for some 12 years before making a full complaint and another year has now passed between the time of the complaint and trial. Accordingly, I have directed myself as follows.
(i)The prosecution case stands almost completely upon her evidence alone.
(ii)Owing to the lapse of time, the accused has not been able to test…

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, Ma

Details

AGLC: R v H, Ma [2011] SADC 97
Case: [2011] SADC 97
Decision Date: 7 July 2011

CaseChat Overview and Summary

In the case of R v H, Ma, the accused was charged with four counts of unlawful sexual intercourse, all occurring over a period of time against the same complainant. The alleged offences took place some 10 years prior to the complainant making her allegations, leading to the accused being tried by a judge alone. The accused pleaded not guilty to all charges, and the court was required to consider the admissibility and reliability of the evidence presented, given the passage of time since the alleged incidents.

The legal issues the court needed to address included whether the evidence was sufficiently reliable and specific enough to prove the charges beyond reasonable doubt, and if the delay in reporting the offences impacted the admissibility or weight of the evidence. Additionally, the court had to consider a warning about the forensic disadvantage faced by the accused due to the delay in reporting and the lack of specificity with respect to one of the counts.

The court examined the evidence presented and noted the challenges in establishing the facts given the passage of time. The court found that while the evidence was reliable, the lack of specificity in one of the counts made it difficult to convict on that particular charge. The court concluded that the remaining three counts were proven beyond reasonable doubt, and the accused was found guilty on those charges. The court did not convict the accused on the count where there was insufficient specificity.

The final orders included the accused being found guilty on three counts of unlawful sexual intercourse, with no conviction on the fourth count due to the lack of specificity. The court considered the impact of the delay in reporting and the challenges in establishing the facts, but ultimately found the evidence sufficient to convict on three of the four charges.

Orders