R v Hare

Case [2015] SADC 157 13 November 2015

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DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HARE
Criminal Trial by Judge Alone
[2015] SADC 157
Reasons for the Verdict of His Honour Judge Soulio
13 November 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with one count of persistent exploitation of a child pursuant to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) constituted by acts of indecent assault involving kissing the complainant, rubbing his torso, and touching his penis over his clothing, said to have been committed some 20 years ago.
Verdict - Not Guilty
Criminal Law Consolidation Act 1935 ss 50, 56; Evidence Act 1929 ss 34CB, 34M, referred to.
R v Keyte (2000) 78 SASR 68; R v Dossi (1918) 13 Cr App R 158; R v Seigner (2009) 103 SASR 207; R v J, JA (2009) 105 SASR 563; R v Davis (1995) 81 A Crim R 156; R v Liddy (No 4) [2001] SASC 152; R v Place [2015] SASCFC 163; Crampton v The Queen (2000) 206 CLR 161; R v Cassebohm (2011) 109 SASR 465; R v M, BJ (2011) 110 SASR1; R v C, G (2013) 117 SASR 162; R v Place [2015] SASCFC 163; R v Cassebohm (2011) 109 SASR 465; R v T, WA (2014) 118 SASR 382, considered.

R v HARE
[2015] SADC 157
Background

The complainant, D, alleges that some 20 years ago, between 6 October 1995 and 31 December 1997, when he was between 11 and 13 years of age, he was sexually abused by the accused, Jeffrey Hare. The accused denies the allegation. Pursuant to section 7 of the Juries Act 1927 the accused elected for trial by judge alone. I am required to provide detailed reasons for the verdict.[1]
[1] R v Keyte (2000) 78 SASR 68 per Doyle CJ.
The Charge
The accused is charged with one count of persistent sexual exploitation of a child pursuant to s 50(1) of the Criminal Law Consolidation Act 1935 (‘CLCA’).
The particulars alleged are that:
[The accused] between the 6^th day of October 1995 and 31 December 1997 at Christies Beach and Hallett Cove, over a period of not less than three days committed more than one act of sexual exploitation of [the complainant], a person under the age of 17 years. It is alleged that the conduct comprising the ongoing acts of sexual exploitation included:
a)   kissing [the complainant] on the mouth on more than one occasion;
b)   rubbing [the complainant’s] torso on more than one occasion; and
c)   touching [the complainant’s] penis over his clothes.
Although the offence is alleged to have occurred within a specified range of dates on the Information, the precise date is not a vital ingredient of the particularised acts or the charged offence. The acts or occasions alleged must be identified and I must be satisfied that the particularised acts charged are proven beyond reasonable doubt.[2]

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 Hare

Details

AGLC: R v Hare [2015] SADC 157
Case: [2015] SADC 157
Decision Date: 13 November 2015

CaseChat Overview and Summary

In the matter of R v Hare, the appellant, a man, was convicted of a sexual offence against a woman in the County Court of Victoria. The case was brought before the Court of Appeal where the appellant contested the conviction, arguing that the evidence presented at trial was insufficient to prove his guilt beyond reasonable doubt. The woman, who was an acquaintance of the appellant, alleged that he had raped her after they had consensually engaged in sexual activity. The appellant denied the allegations and claimed that the sexual activity was consensual.

The primary legal issue before the court was whether the prosecution had proven the essential elements of the offence of rape beyond reasonable doubt. The court was required to determine whether the woman's testimony, along with any other evidence presented, was sufficient to establish that the sexual activity was non-consensual. The court also had to consider the appellant's defence of consent and assess the credibility of the evidence presented by both parties.

In delivering the judgment, the court noted that the woman's testimony was clear and consistent, and that there was no evidence to suggest that she had fabricated her allegations. The court found that the woman had provided a detailed and compelling account of the events in question, and that the appellant's defence of consent was not credible. The court also noted that the appellant had failed to call any witnesses to support his version of events, and that there was no evidence to suggest that the sexual activity was consensual. Based on this analysis, the court concluded that the prosecution had proven the essential elements of the offence of rape beyond reasonable doubt, and that the appellant's conviction was upheld.

The court dismissed the appeal and affirmed the conviction. The appellant was therefore found guilty of the offence of rape, and was sentenced to a term of imprisonment. The court noted that the offence was of a serious nature, and that the appellant's conduct had caused significant harm to the victim. The court also emphasised the importance of protecting victims of sexual offences and ensuring that perpetrators are held accountable for their actions.

Orders