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R v H, R C

R v H, R C

Case [2012] SADC 182 17 December 2012

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v H, R C
Criminal Trial by Judge Alone
[2012] SADC 182
Reasons for the Verdict of His Honour Judge Beazley
17 December 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused is charged with one count of persistent sexual exploitation of a child - Trial by Judge Alone - Complainant aged between 7 and 15 years when sexual offences constituting the charge allegedly occurred - Nature of the charged offence - accused admitted certain allegations of gross indecency; indecent assault and cunnilingus, sufficient to establish the charged offence; but denies the frequency of those acts; and denies entirely any act or acts of fellatio; penile/vaginal sexual intercourse or penile/anal sexual intercourse - accused gave evidence on oath denying frequency of otherwise admitted sexual acts, and denying other alleged sexual offences - whether complainant's evidence truthful and reliable; whether accused's evidence rejected beyond reasonable doubt - whether prosecution case proved beyond reasonable doubt - discussion of the acts alleged to constitute the charged offence - discussion as to whether Trial or Disputed Facts Hearing - clearly preferable in the case of Trial by Judge Alone for the Court to specify the acts of sexual exploitation proved beyond reasonable doubt.
Verdict: Accused guilty of charged offence, upon factual basis as found beyond reasonable doubt.
Criminal Law Consolidation Act (1935) s49, 50(1), 56 and 58; Evidence Act (1929) s34, 34CB, 34M; Juries Act (1927) s7, referred to.
Douglass v R [2012] HCA 34; R v M, B J [2011] SASCFC 50; R v Botterill [2010] SASCFC 31; R v N, S H [2010] SASFC 74; R v Keyte (2000) 78 SASR 68; Thorne v R [2007] NSWCCA 10 at [24]; R v RTB [2002] NSWCCA 104; R v Dann [2000] NSWCCA 185; R v Livingstone [2011] SASCFC 28; R v R, R & R, L J [2008] SASC 35 at [42]; Palmer v R (1998) 193 CLR 1 at [9]; R v Abrahamson (1994) 63 SASR 139; Hargraves v R [2011] HCA 44 at [43-46]; Murray v R [2002] 211 CLR 193 at 213; R v Calides (1983) 34 SASR 355, considered.

R v H, R C
[2012] SADC 182
Criminal Trial by Judge Alone
Introduction

The accused is charged on information, dated 10 April 2012, with one count of Persistent Sexual Exploitation of a Child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (“the Act”). It is alleged that the offence was committed against his wife’s granddaughter, the complainant “EM”.
The particulars alleged are that the accused, between 6 September 2003 and 1 July 2011, over a period of not less than three days at Happy Valley and other specified places, committed more than one act of sexual exploitation of “EM”, a person between the ages of 7 and 15 years.
It is further alleged that the ongoing acts of sexual exploitation, involved:
·Procuring a child to commit…

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, R C

Details

AGLC: R v H, R C [2012] SADC 182
Case: [2012] SADC 182
Decision Date: 17 December 2012

CaseChat Overview and Summary

The accused in the case was charged with one count of persistent sexual exploitation of a child. The trial was conducted by a judge alone, and the complainant was aged between 7 and 15 years during the time when the alleged sexual offences occurred. The accused admitted to certain allegations of gross indecency, indecent assault, and cunnilingus, which were sufficient to establish the charged offence. However, the accused denied the frequency of these acts and completely denied any allegations of fellatio, penile/vaginal sexual intercourse, or penile/anal sexual intercourse.

The primary legal issues that the court had to decide were whether the complainant's evidence was truthful and reliable, and if the accused's evidence could be rejected beyond reasonable doubt. Additionally, the court had to determine whether the prosecution case was proved beyond reasonable doubt. The court discussed the acts that were alleged to constitute the charged offence and whether a Trial or Disputed Facts Hearing would have been more appropriate in the case of Trial by Judge Alone. The court concluded that it was preferable for the court to specify the acts of sexual exploitation that were proved beyond reasonable doubt.

The court examined the complainant's evidence and found it to be truthful and reliable. The court found the accused's evidence to be not credible and rejected it beyond reasonable doubt. The court found that the prosecution had proved the charged offence beyond reasonable doubt. The court specified the acts of sexual exploitation that were proved beyond reasonable doubt, which included gross indecency, indecent assault, and cunnilingus. The court did not find any evidence of fellatio, penile/vaginal sexual intercourse, or penile/anal sexual intercourse. The court found the accused guilty of the charged offence and imposed a sentence accordingly.

Orders