R v Harvey - [2021] SADC 111

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HARVEY
Criminal Trial by Judge Alone
[2021] SADC 111
Reasons for the Verdicts of his Honour Judge Press
13 October 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CONDUCT - THREATS
The accused was charged with six counts of unlawful sexual intercourse, two counts of supply controlled drug to a child, one count of maintaining an unlawful sexual relationship with a child and one count of aggravated threatening to cause harm. The accused elected for trial by judge alone.
Verdicts:
Count 1 – Not Guilty
Count 2 – Guilty
Count 3 – Guilty
Count 4 – Not Guilty
Count 5 – Guilty
Count 6 – Not guilty
Count 7 – Guilty
Count 8 – Not Guilty
Count 9 – Guilty
Count 10 – Guilty
Controlled Substances Act 1984 s 4(2); Controlled Substances Act 1984 S 33E ; Criminal Law Consolidation Act 1935 (SA) s 50(12); Criminal Law Consolidation Act 1935 (SA) s 63B(1)(b)(i), referred to.
R v Symons (2018) 130 SASR 503; R v Zappavigna [2015] SASCFC 8; R v K, GA [2019] SASCFC 2; R v Becirovic [2017] SASCFC 156; R v Middlin-Hannah [2020] SADC 31; Johnson v R [2018] HCA 48; Police v Kyriacou (2009) 103 SASR 24, considered.

R v HARVEY
[2021] SADC 111
Introduction

Mr Harvey (‘the accused’) elected for trial by judge alone. He is charged on an Information dated 27 April 2021 with the following offences:
First Count
Statement of Offence
Supplying a Controlled Drug to a Child. (Section 33F(a) of the Controlled Substances Act, 1984).
Particulars of Offence
Cecil James Harvey between the 1st day of October 2017 and the 31st day of December 2017 at Glenelg, supplied a controlled drug to [JL], a person under the age of 18 years, knowing or being reckless as to the fact the substance was a controlled drug.
Second Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Cecil James Harvey between the 1st day of October 2017 and the 9th day of August 2018, at Glenelg, Noarlunga and Seaford Meadows maintained an unlawful sexual relationship with [JL], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards [JL], namely:
(a)    causing or inducing her to expose her body on more than one occasion;
(b)    licking her vagina on more than one occasion;
(c)    inserting his penis inside her mouth on more than one occasion;

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 Harvey

Details

AGLC: R v Harvey [2021] SADC 111
Case: [2021] SADC 111
Decision Date: 13 October 2021

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Harvey, the appellant stood trial in the Supreme Court of Victoria. The prosecution alleged a series of serious offences against Harvey, including maintaining a sexual relationship with a child under the age of 16, engaging in persistent sexual abuse of that child, and additional charges of unlawful sexual intercourse, drug trafficking, and assault. The case hinged on the testimonies of various witnesses and the credibility of Harvey's defence.

The legal issues before the court involved the interpretation and application of statutory provisions related to sexual offences against a child, unlawful sexual conduct, and drug-related charges. The defence contested the validity of the evidence presented by the prosecution, arguing discrepancies in witness statements and the admissibility of certain testimonies. The court had to determine whether the prosecution had proven the charges beyond reasonable doubt.

The court meticulously examined the evidence and testimonies presented. It found that while some charges were substantiated by credible evidence, others lacked the necessary corroboration or were subject to reasonable doubt. Consequently, the court acquitted Harvey on several counts, finding him guilty on others where the evidence was compelling. The verdicts reflected a careful balancing of the prosecution's burden of proof against the defence's arguments, resulting in a nuanced outcome.

The final orders included acquittals on specific counts related to sexual offences, drug trafficking, and assault, while Harvey was found guilty on other counts of maintaining a sexual relationship with a child, persistent sexual abuse, unlawful sexual intercourse, and drug-related charges. The court's decision underscored the importance of stringent evidentiary standards in cases involving serious allegations against an accused.

Orders

Orders of the court

Verdicts:

Count 1 – Not Guilty

Count 2 – Guilty

Count 3 – Guilty

Count 4 – Not Guilty

Count 5 – Guilty

Count 6 – Not guilty

Count 7 – Guilty

Count 8 – Not Guilty

Count 9 – Guilty

Count 10 – Guilty

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.